Davis v Davis, 2023 ABKB 652

Court of King’s Bench of Alberta Citation: Davis v Davis, 2023 ABKB 652 Date: 2023-11-20 Docket: 4803 183851 Registry: Edmonton Between: Monica Marie Davis Plaintiff - and - Benjamin Davis Defendant _______________________________________________________ Reasons for Decision of the Honourable Justice W.N. Renke _______________________________________________________ [ 1 ] Mr. Davis (the Father) appealed an Arbitration Award made by Dr. Gregory Pickering respecting parenting. The Award modified the parties’ parenting arrangement, changing it from a 4/4 rotation to a 7/7 rotation.

The Award maintained shared parenting and did not alter the total amount of parenting time for each parent. From Ms. Davis’s (the Mother’

s) perspective, the Award provided her with more regular weekend parenting time when she was not working and facilitated contact of the children with her “live out” partner and the partner’s daughter. From the Father’s perspective, as acknowledged by Dr. Pickering, the Award “[lessened] by half ... the amount of time that he has on his days off that are also parenting days:” Award III.8. [ 2 ] The issue of the validity of the appeal of the Award originally came before me in Family Chambers and was the subject of

subsequent written argument. I found that the appeal was valid in a decision reported at 2023 ABKB 242 . A costs determination followed. I heard the appeal over dates in September 2023. [ 3 ] The crucial issue is whether Dr.

Pickering made a reviewable error in determining that a material change in circumstances had occurred permitting variation of the parties’ parenting arrangement. [ 4 ] After reviewing the background to the appeal, I will address the following questions: • What standard of review governed the appeal? • Was a material change in circumstances required before the parties’ parenting arrangement could be varied by the Award? • What is the test for a material change in circumstances? • Did reviewable error occur in Dr. Pickering’s determination that a material change in circumstances had occurred? Table of Contents I.

Background . 2 II. Standard of Review .. 3 III. Was a material change in circumstances required before the parties’ parenting arrangement could be varied by the Award? . 4 A. No Immunity from Variation . 4 1. Divorce Judgment 4 2. The 2021 Award . 4 B. Insubstantial Changes . 5 1. Not Insubstantial Change . 5 2. Jurisdiction . 6 C. Variation without Material Change . 6 1. The PC Order 6 2. The Arbitration Agreement 6 3. The 2021 Award . 7 4. The Reservation of Rights or “Under Protest” Argument 8 D. Comments and Conduct of Dr. Pickering and the Parties . 10 E. Conclusion . 10 IV.

What is the test for a material change in circumstances? . 10 A. The Test 10 B. Material Change ... From When? . 11 C. The Test for Material Change and Consent Judgments . 12 1. Reasonable Contemplation . 12 2. Impact of Consent 12 D. Evidence of Material Change – the Passage of Time and Cumulative Change . 13 V. Did reviewable error occur in Dr. Pickering’s determination that a material change in circumstances had occurred? . 14 A. The Standard of Review .. 14 B. The Material Change Determination . 15 1. The Determination of Material Changes in Circumstances . 15 2.

The Facts and Material Change Determination . 16 3. Conclusion . 19

VI. Remedy . 20 I. Background [ 5 ] The parties married in 2006 and separated in 2017. Their children were born in 2009, 2012, 2013, and 2015. [ 6 ] The Mother works as a laboratory instructor at an Edmonton University, Monday to Friday, and does some additional work on weekends. The Father works as a paramedic-firefighter with a municipality. His work is on an 8-day rotation, consisting of two 10- hour day shifts (0800-1800) and two 14-hour night shifts (1800 to 0800) followed by 4 days off.

His hours on shift may be extended, depending on the timing and severity of emergencies. [ 7 ] In February 2018 the parties executed Minutes of Settlement and a Matrimonial Property Agreement (the MoS). [ 8 ] On April 12, 2019, the parties entered into a Consent Parenting Coordination Order granted by Justice Lee under Practice Note 7, which then provided for parenting coordination (the PC Order). Under clause 2(

a) of this order, Dr. Pickering was appointed Parenting Coordinator to assist the parties in developing a parenting plan (see also clauses 3(

e) and (

h) and Appeal Record (AR) 5). Under clause 7, the parenting plan was to be filed with the Court. [ 9 ] On April 30, 2019, the parties and Dr. Pickering entered into an Agreement for Parenting Coordination Services and Arbitration Agreement, as contemplated under the Arbitration Act (the Arbitration Agreement). [ 10 ] With the assistance of Dr. Pickering, the parties worked out a Parenting Plan in May 2020.

The Parenting Plan was filed with the Court. [ 11 ] The parties were divorced and parenting was addressed in a Divorce Judgment and Corollary Relief Order granted by Justice Gill on November 2, 2020 (the Divorce Judgment). The Divorce Judgment stated that the parties shall follow their Parenting Plan. The Parenting Plan was incorporated by reference in the Divorce Judgment. [ 12 ] From at least the time of the MoS, the parties had an 8-day rotation parenting arrangement.

It was described as not a “clean” 4/4 rotation, but in the nature of a 5/3 rotation with some additional (“interim”) parenting time available to the Father. [ 13 ] The parties worked with Dr. Pickering resulting in an agreement respecting the parenting schedule. This agreement was put into an Arbitration Award dated October 7, 2021, styled “Final Award,” filed with the Court (the 2021 Award). The 2021 Award simplified the parenting arrangement so that it was more clearly a 4/4

schedule and addressed some incidental matters such as pick-up and drop-off. [ 14 ] The challenged Award of October 17, 2022 followed submissions by the parties to Mr. Pickering. II. Standard of Review [ 15 ] The PC Order addressed the appeal of Parenting Coordinator decisions. The Order clearly allocated the burden of persuasion to an appellant but did not specify the standard of review. Clause 18 of the order provided as follows: 18. If either party objects to a decision of the Parenting Coordinator, that party can appeal to the Court , provided that ... (

d) The party objecting to the Court about a decision of the Parenting Coordinator shall have the onus to show that the decision of the Parenting Coordinator should be changed . [emphasis added] [ 16 ] Neither the Arbitration Agreement nor the Arbitration Act specified the standard of review. Clause 46 of the Arbitration Agreement provided as follows: 46.

The [Parenting Coordinator’s] Award when made and executed is final and binding upon the parties and enforceable in any court of competent jurisdiction and in the same manner as any other judgment of the said court subject however to the rights of appeal of Section 44(1) of the Arbitration Act . [ 17 ] Section 44(1) of the Arbitration Act provides as follows: 44(1) If the arbitration agreement so provides, a party may appeal an award to the court on a question of law, on a question of fact or on a question of mixed law and fact.

In my earlier decision, I found that the reference in the Arbitration Agreement to subsection (1) of s 44 meant that an appeal of a decision under the Arbitration Agreement was not confined to questions of law: see paras 66-72. [ 18 ] In Esfahani v Samimi , 2022 ABKB 795 , application for leave to appeal denied 2023 ABCA 220 (Ho JA), Justice Marion held that appellate standards of review apply to appeals of family law arbitration decisions under the Arbitration Act , subject to any contractual modification (see para 82), and described those standards of review at para 85: (1) the standard of review for statements of law or conclusions on issues of law, is correctness (2) the standard of review on findings of fact, including inferences of fact, are reviewed for manifest error or palpable and overriding

error (3) the standard of review for questions of mixed fact and law is palpable and overriding error unless there is an extricable question of law. See also Zemtsova v Shevalev Estate , 2023 BCSC 1375 , Stephens J at paras 63-80. [ 19 ] I agree with Justice Marion that Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 dictates that, in the absence of statutory language to the contrary, a statutory right of appeal is governed by appellate standards of review, without qualification: see Esfahani v Samimi at paras 69-77 (at para 20(CA), Justice Ho referred to but did not decide this issue).

Hence, I agree with the Mother’s counsel that no “shading” of deference or “degrees of deference” should be imported into the standards of review, with arbitrators attracting less deferential scrutiny as suggested by the Father. III. Was a material change in circumstances required before the parties’ parenting arrangement could be varied by the Award? [ 20 ] The parties’ parenting arrangement was embodied in a court order on November 2, 2020 through the incorporation by reference of the Parenting Plan in the Divorce Judgment.

The parties’ parenting arrangement was varied by the 2021 Award. [ 21 ] Did the modification of the parties’ parenting arrangement through the Award require that a material change in circumstances have been established? A. No Immunity from Variation [ 22 ] Dr. Pickering commented that “the question about the permanent nature of [the 4/4]

schedule seems dubious:” Award III.2. Dr. Pickering was right that the arrangement formalized prior to the Award was not “permanent” in the sense of being immune from variation. 1. Divorce Judgment [ 23 ] The Parenting Plan was incorporated by reference in the Divorce Judgment. The part of the Divorce Judgment dealing with the Parenting Plan was labelled neither a “final” Corollary Relief Order nor an “interim” Corollary Relief Order. I recognize that the Divorce Judgment as a whole could be regarded as “final.” Regardless, the parenting element of the Divorce Judgment could be varied under s 17(1)(

b) of the Divorce Act upon demonstration of a material change in circumstances. Under s 17(5), (5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order .... See Warrington v Kozak , 2014 ABCA 419 , Brown JA at para 8; LaFontaine v LaFontaine , 2011 ABQB 332 , Burrows J at paras 13-14. 2.

The 2021 Award [ 24 ] The 2021 Award bore the title “Final Award.” Did that mean, absent appeal, the 2021 Award could not be varied or could not be varied by Dr. Pickering? Clause 46 of the Arbitration Agreement provided as follows: 46.

The [Parenting Coordinator’s] Award when made and executed is final and binding upon the parties and enforceable in any court of competent jurisdiction and in the same manner as any other judgment of the said court subject however to the rights of appeal of Section 44(1) of the Arbitration Act . [emphasis added] [ 25 ] I’ll return to the peculiarities of the 2021 Award in a moment. At this point, I will register my determination that the 2021 Award was no more immune from variation than the Divorce Judgment.

The 2021 Award was “final and binding” in “the same manner as any other judgment of the said court.” But a parenting order is subject to variation. The 2021 Award, then, had no greater immunity from variation than the Divorce Judgment. Further, the 2021 Award should have had no lesser immunity from variation than the Divorce Judgment. Prima facie , a material change in circumstances must have been demonstrated before variation. I will address below the issue of whether the 2021 Award altered what would otherwise have been the precondition for variation. B. Insubstantial Changes 1.

Not Insubstantial Change [ 26 ] I accept that a material change in circumstances is not always required before a parenting order is varied. The parties may consent to a variation. More to the point, it is possible that insubstantial changes may be made to a parenting order (e.g. a pick-up or drop-off location in a community already designated by prior order or a minor change to timing of pick-up or drop-off) without requiring a material change in circumstances: see LAS v WRS , 2019 ABCA 65 at para 13 ; Huitt v Huitt , 2021 ABCA 235 at para 8 ; JC v KC , 2022 ABKB 707 , Marion J at para 141.

However, I do not consider the change to parenting made in the Award to be insubstantial. [ 27 ] It is true that parenting remains shared and the Award did not change the overall quantity of parenting time, in the abstract.

[ 28 ] The concrete impact of the Award, though, was to reduce the Father’s actual parenting time. Under the arrangements preceding the Award, the Father’s parenting time was on his days off. Under the arrangements contemplated by the Award, some of the Father’s parenting time would be allocated to days when he was working, when it is likely that he would have no actual contact with the children or only negligible contact with the children. The Mother’s counsel conceded fairly in oral argument that the Award has a “considerable impact,” there is a “considerable loss of time for dad.” [ 29 ] Dr.

Pickering had commented at III.7 of the Award that the change to a 7/7 arrangement meant that the Mother would get “more and regular weekend parenting time when she is not working.” [emphasis added] The 7/7 arrangement would provide the Mother with “more regular” weekend parenting time when she is not working but not “more” weekend parenting time when she is not working. The 7/7 arrangement affects the timing not the quantity of the Mother’s weekend parenting time when she is not working. I understand the “more and regular” language to be a form of “typographical error.” The word “and” was improperly inserted.

If Dr. Pickering had indeed claimed that the Mother was given “more” time, that would be an unreasonable error of fact. I note that the Mother’s counsel had conceded in written submissions that “a 7/7

schedule does not result in any current quantitative improvement with the Mother and the children for non-working time together:” written submissions para 60. [emphasis added] (Following the Mother’s counsel’s submissions, I rely on Justice Fish’s decision in HL v Canada (Attorney General) , 2005 SCC 25 to support the use of the term “unreasonable” to describe a factual finding failing to meet the standard of review - alternative descriptions of the “palpable and overriding error” standard are “clearly wrong” (paras 55, 69), “unreasonable,” “unsupported by the evidence” (para 56, 71, 110).) 2.

Jurisdiction [ 30 ] Para 6 of the Arbitration Agreement provided that The PC is not able to change the usual parenting time (residential)

schedule that substantially reduces or substantially expands the children’s time with one or both parents .... Consistently, the PC Order provided in clause 3 that, once a Parenting Plan has been arrived at, the PC had authority to disputes over “any detail” of the Parenting Plan. [ 31 ] In my opinion, the Award resulted in a substantial reduction of the Father’s parenting time and dealt with more than “details” of the Parenting Plan. [ 32 ] That said, the Mother’s counsel correctly observed that the Father did not contend that Dr. Pickering exceeded his jurisdiction.

I do not find that the Award was void as exceeding Dr. Pickering’s jurisdiction. [ 33 ] I do confirm though that the Award did not involve only insubstantial determinations that might avoid the requirement of support by a material change in circumstances. C. Variation without Material Change [ 34 ] Did anything in the PC Order, the Arbitration Agreement, or the 2021 Award show that Dr. Pickering’s awards could be varied without a material change in circumstances? 1. The PC Order [ 35 ] The PC Order does not deal with the variation of Awards.

Preamble D states that “[t]he parties have consented to be bound by the decisions of the Parenting Coordinator, subject to Court review as provided below.” The “Court review” is the appeal procedure set out in clause 18. The “binding” language does not suggest variation without material change. [ 36 ] I add that clause 18(

d) provides that The party objecting to the Court about a decision of the Parenting Coordinator shall have the onus to show that the decision of the Parenting Coordinator should be changed. A reading of this clause is that the Mother’s bid to vary the parenting arrangement should have been brought through an appeal. If that reading were accurate, the Award would lack a procedural foundation and would be invalid. The parties did not address this issue – and again Dr. Pickering’s jurisdiction was not raised – so I will pursue that point no farther. 2.

The Arbitration Agreement [ 37 ] Clause 46 of the Arbitration Agreement provides that 46. The [Parenting Coordinator’s] Award when made and executed is final and binding upon the parties and enforceable in any court of competent jurisdiction and in the same manner as any other judgment of the said court subject however to the rights of appeal of Section 44(1) of the Arbitration Act . The Arbitration Agreement does not expressly deal with variations of awards. [ 38 ] One might argue that the Arbitration Agreement precluded variation.

An award is binding, subject to appeal only. [ 39 ] However, in my opinion, the “final and binding ... and enforceable ... in the same manner as any other judgment of the said court” language means that awards should be subject to variation “in the same manner” as other court orders concerning parenting. In the absence of special circumstances (addressed next), that means that variation is permissible, but material change is necessary to support

variation. [40] This is to say that the material change in circumstances test was not ousted just because the parties put parenting to arbitration. 3. The 2021 Award (

a) Legal Context [41] The 2021 Award was not made in a system of legal rules that permits a distinction between “final” orders subject to variationon a showing of a material change in circumstances and “interim” orders subject to variation without a showing of a material change incircumstances (a prospect respecting some orders under the Family Law Act). See Wandler v Crandall, 2017 ABCA 391 at paras 20, 22;Witt v Johnson, 2022 ABQB 105, Nielsen ACJ at paras 40-44; Gordon v Towell, 2010 ABQB 396, Lee J at para 52; PDB v MRW, 2009ABQB 532, Marceau J at paras 16, 19. (

b) Title of the Award [42] The 2021 Award was titled a “Final” award, not an “interim interim” order or an “interim without prejudice” order signallingvariation without a showing of a material change in circumstances: Witt v Johnson at para 45. [43] I note that s 41 of the Arbitration Act contemplates an arbitrator making interim and final awards. I received no argument onthis issue. (

c) As an Interim Order [44] The 2021 Award stated at para 8 that “[t]his Award will be in effect for a minimum of 6 months.” I accept that this referenceprovides some support for the view that the award was temporary, liable to be replaced by some future award, perhaps a future moreconclusive award. The award contemplated that there could be a time when it would not be in effect. It could be changed.

In that sense,the award could be regarded as “interim.” I agree, then, with the Mother’s counsel’s submission at para 72, that the 2021 Award “may bebest viewed as interim, and not final.” [45] Moreover, the award was not “final” and so was “interim” since the award was not based on an undisputed documentaryrecord or on the assessment of viva voce evidence. See Hartley v Del Pero, 2010 ABCA 182 at para 9; Witt v Johnson at para 33. [46] But even “interim” court orders, subject to any language in the order to the contrary, may be varied only on a material changein circumstances.

See Stannard v Stannard, , 123 AR 27 (QB), McDonald J, as he then was. Moreover, sincearbitrations under the Arbitration Agreement are conducted in accordance with the law of the Province of Alberta and the law of Canada(clause 30), it would be expected that parenting awards would incorporate legal standards for the variation of parenting arrangements. (

d) Features of the Award [47] Para 8 of the 2021 Award stated that This award will be in effect for a minimum of 6 months and if either parent breaches the terms of the Award on a consistent basis it shallbe reviewed. Does the language of this clause show that the parenting arrangement preceding the Award could be varied without a material change?The term “review” raises the issue. [48] The term “review” in parenting or support orders is used to signal that variation may be permitted without a material change incircumstances, e.g., after a period of time has elapsed.

On this use of the term “review,” see Rayner v Gratton, 2012 ABQB 617, Veit Jat para 13: This is not a situation where the court is entitled, by reason of the proceedings themselves, to consider parenting afresh.

The court mighthave been in that position if the interim consent order entered into between the parties had explicitly stated that parenting could bereviewed at any time, or if it had said that the interim consent order was to be in effect until further order of the court, or if it had usedany analogous wording to indicate that the parties were not intending a usual interim order, that is one which would apply until a trial ofthe parenting issue. [49] If there were consistent breaches of the 2021 Award, the award could be “reviewed.” Regardless, consistent breaches wouldamount to a material change in circumstances. [50] I do not read the clause to say, in effect, that after 6 months the award may be reviewed.

I read “review” to concern onlyconsistent breaches. [51] Further, the paragraph simply states that “[t]his award will be in effect for a minimum of 6 months” without specification ofwhat conditions might or might not require satisfaction before the award could be modified given the passage of time. [52] In any event, even if the 2021 Award itself were reviewable, that would not make the parenting arrangement that existed priorto that award reviewable.

The 2021 Award, as indicated above, deals only with details of parenting, including pick-up and drop-off, andwhat the parties referred to as the “interim” parenting days in the parenting schedule. The 2021 Award, read by itself, is not a parentingplan but a fragment of a parenting plan. The 2021 Award “cleaned up” the preceding parenting arrangement but presupposed thatarrangement and presupposed the parties’ adherence to that arrangement, as varied by the 2021 Award. The 2021 Award relied on the

pre-existing parenting arrangement. Review of the 2021 Award would not encompass potential displacement of the pre-existing parenting arrangement with a 7/7 arrangement. [ 53 ] Dr. Pickering did not refer in the Award to the 2021 Award’s “review” language as justifying his approach to change of circumstances. 4. The Reservation of Rights or “Under Protest” Argument [ 54 ] I note that Dr. Pickering said the following in the Award at III.2: 2. .... The mother indicated that she had wanted a 7/7

schedule from the outset and had indicated this last fall when I was involved in making an Award about parenting time details .... The fact that the request from the mother comes at this time seems like it is not a significant factor. It seems likely that the 4/4

schedule would be reviewed at her request at some point and the question about the permanent nature of this

schedule seems dubious. As I said above, Dr. Pickering was right that the 4/4 parenting

schedule was not permanent. But this was not all that Dr. Pickering said. [ 55 ] Dr. Pickering confirmed that the Mother had raised the issue of change to a 7/7

schedule before the 2021 Award was made. In her submissions the Mother mentioned the following (AR 30): Yes we did discuss this with Dr. Pickering last year at this time, when I told you that I would be asking to change to a week on week off

schedule yearly until such time as we agreed on it. [ 56 ] Dr. Pickering continued by saying that “[t]he fact that the request from the mother comes at this time seems like it is not a significant factor” and observed that “it seems likely that the 4/4

schedule would be reviewed at [the Mother’s] request at some point.” [ 57 ] Do these comments by Dr. Pickering, coupled with the Mother’s comments, mean that the parenting arrangements have been subject to revision without a material change in circumstances all along? That the parenting arrangements could be re-considered simply based on a renewed request for change by the Mother? The Mother’s counsel suggested this, writing that the 2021 Award “was intended to be a temporary agreement on the path to moving towards a 7/7

schedule in due course:” written submissions para 8. [ 58 ] In my opinion, despite the Mother having raised the 7/7 issue before and despite her intention to raise that issue again, none of the formal documentation issuing from these proceedings supports the proposition that the parenting arrangement was renewable on request. [ 59 ] I look to Justice Smith’s observation in Yu v Jordan , 2012 BCCA 367 at para 53 : [53] In my view, the

interpretation of a court order is not governed by the subjective views of one or more of the parties as to its meaning after the order is made. Rather an order, whether by consent or awarded in an adjudicated disposition, is a decision of the court. As such, it is the court, not the parties, that determines the meaning of its order. In my view, the correct approach to interpreting the provisions of a court order is to examine the pleadings of the action in which it is made, the language of the order itself, and the circumstances in which the order was granted.

See also Kantor v Kantor , 2023 ABCA 237 at para 23 (“A court order must be interpreted as a holistic document, by reading it as a whole, in the context of the pleadings, the arguments and the circumstances in which the order was made ....”). [ 60 ] As I have found, nothing in the PC Order, the Arbitration Agreement, the Divorce Judgment, or the 2021 Award support the “review on request” proposition. [ 61 ] Neither, in my opinion, does the III.2 quotation above support this proposition.

Were it to do so, there would be – as the Father’s counsel argued – a manifest inconsistency with para III.1 and its reference to material change. Rather, the III.2 quotation must be read in context. Dr. Pickering had found that there was a material change in circumstances. This determination allowed Dr. Pickering to consider the Mother’s request for a 7/7 parenting arrangement. It is not that the Mother’s request for a re-consideration was the trigger for a re-consideration. The change in circumstances was the trigger for re-consideration.

Since the parenting arrangement was open for re-consideration, the “timing” of the Mother’s request was “not a significant factor.” It could be considered now or would likely be considered later (assuming that re-consideration was supported by a material change in circumstances). According to Dr. Pickering, “it seems likely that the 4/4

schedule would be reviewed at [the Mother’s] request at some point” – again, not just because she made the request but because of changes in circumstances. D. Comments and Conduct of Dr. Pickering and the Parties [ 62 ] Dr. Pickering himself confirmed the need for satisfaction of a material change in circumstances to justify the variation instantiated in the 2022 Award. At III.1 of the Award, he stated that 1. There is a question as to whether or not there had been a material change in the circumstances for this matter to be reviewed .... I accepted the mother’s view on this matter. At III.3, Dr. Pickering also alluded to another material change in circumstances. He stated that “[t]he 4/4

schedule ... was put in place to deal with young children not yet in school. Such is not the case any longer so other schedules can be considered.” [ 63 ] Certainly, the Father was insistent in his arbitration submissions that a material change in circumstances must be established before varying the parenting arrangement that had been in place. He denied that such a change occurred. See e.g., AR 28, 34, 56, 69. Additionally, the Father’s participation in the arbitration process and, indeed, his referring the matter to arbitration, was not a “waiver”

of the requirement of a material change in circumstances as his submissions emphasized the need for such a change as a prerequisite toany change in the parenting arrangement. [64] The Mother too addressed material changes in circumstances: AR 30, 48, 49, 62. The Mother’s counsel stated that “[i]t is notdisputed that prior to varying a parenting arrangement, there is a requirement to find a change in circumstances of the children:” writtensubmissions para 68. E.

Conclusion [65] I conclude that before the parenting arrangement formally established by the Mother and Father could be varied, the Mother,as the party seeking variation, was required to establish a material change in circumstances. IV. What is the test for a material change incircumstances? A. The Test [66] Under s 17(5) of the Divorce Act,

(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there hasbeen a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, orof an order made under subsection 16.5(9). [67] Justice McLachlin, as she then was, provided the classic articulation of the test for material change in circumstances inGordon v Goertz, (SCC), [1996] 2 SCR 27 at paras 12-13 (pp 43-44): 12 What suffices to establish a material change in the circumstances of the child?

Change alone is not enough; the change musthave altered the child’s needs or the ability of the parents to meet those needs in a fundamental way .... The question is whether theprevious order might have been different had the circumstances now existing prevailed earlier .... Moreover, the change should representa distinct departure from what the court could reasonably have anticipated in making the previous order. “What the court is seeking toisolate are those factors which were not likely to occur at the time the proceedings took place”: J. G.

McLeod, Child Custody Law andPractice (1992), at p. 11-5. 13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a changein the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order. [68] The parent seeking variation bears the burden of establishing the material change in circumstances: Gordon v Goertz at paras9, 10, 12, 39, 47. [69] The Gordon v Goertz approach to the material change in circumstances test continues to apply respecting the SC 2019 c 16amendments to the Divorce Act.

See Burg v Burg, 2021 ABCA 371 at para 13; Lemay v Lemay, 2023 ABKB 303, Marion J at para 200;Barendregt v Grebliunas, 2022 SCC 22 at para 76. B. Material Change ... From When? [70] The parties separated in 2017, entered into the MoS in 2018, worked out the Parenting Plan in May 2020, incorporated theParenting Plan into the Divorce Judgment in November 2020, and developed the 2021 Award in October 2021.

The material change incircumstances analysis could differ depending on the starting point for that analysis. [71] Subsection 17(5) identifies the starting point for the analysis, the time of making of the order to be varied or the last variationorder:

(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there hasbeen a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order ....[emphasis added] [72] Gordon v Goertz refers in para 13 to the “initial order” but is not contrasting that order with a subsequent variation orderpreceding the variation application in question.

Para 13 is assuming the variation of an unvaried “initial order.” Para 12, consistently,refers to the “previous order.” Hence, Gordon v Goertz identifies the same analytical starting point as s 17(5). C. The Test for Material Change and Consent Judgments 1. Reasonable Contemplation [73] The third element of the test for material change refers to what would have been within the reasonable contemplation of thejudge granting the prior order.

[ 74 ] The Court of Appeal observed in Burg v Burg at para 20 that This third inquiry becomes difficult to analyse where, as here, the initial parenting order and the corollary relief in the divorce judgment were the subject of consent between the parties: see Kazberov v Kotlyachkova , 2019 ONSC 7393 at paras 16-18 . If an order is granted by consent, especially if an order is granted in the context of a desk submission (r 12.50), the judge may not have reasonably contemplated anything in relation to the parties except their consent and the formal validity of their order.

Justice Breithaupt Smith therefore wrote at para 18 of Kazberov that “We must therefore take a different approach to this third branch in the modern context.” It appears that the different approach is to consider what was reasonably foreseeable and what should be reasonably acceptable to the non-moving party (an objective test, see Kazberov at para 19 ). 2. Impact of Consent [ 75 ] The fact that a Parenting Order was made by consent – as were, in this case, the Divorce Judgment and the 2021 Award – provides neither greater nor lesser resistance by the order to change.

The threshold test for varying a consent parenting order remains establishing a material change in circumstances. [ 76 ] On the one hand, the fact of consent does not give an order special presumptive weight. Thus, the Court of Appeal wrote as follows at paras 17 and 18 of Mills v Mills , 2018 ABCA 374 : [17] ....

Simply because the earlier order was made by consent does not remove or limit a judge’s jurisdiction, particularly a case management judge, to subsequently vary it when a material change in circumstances has occurred: see generally Hearns v Hearns , 2004 ABQB 75 at paras 17-20 , 352 [AR 60]; Rayner v Gratton , 2012 ABQB 617 at para 13 ; Cheng v Li , 2015 ABCA 322 at paras 22-27 .... [18] No special status or presumptive weight is given to the existing Consent Interim Parenting Order on such an application simply because it was a consent order.

It is not difficult to imagine changes in circumstances which mandate a change in a consent parenting arrangement required to protect the child. [ 77 ] On the other hand, consent orders cannot be varied on a showing of mere change, a lesser standard than material change.

In Cheng v Li , the Court of Appeal wrote as follows at paras 23, 26-27: [23] Where custody agreements have been reduced to a consent order, the provisions of s 17 of the Divorce Act apply, requiring a material change of circumstances : Foreman v Foreman , 2005 ABQB 343 , 53 Alta LR (4th) 319 at paras 13 , 23. [26] Moreover, in the case of a consent order the court presumes that when parties are in agreement they usually know what is best for the family, and what is in the best interests of their children. The parties must keep their promises once they are made.

If a party has compromised one advantage to achieve another, that party should not lightly be allowed to resile from the bargain freely made : Hearn v Hearn , at para 31 . [27] There are limits to permitting any perceived change to result in a change to a custody order entered into by the consent of the parents. Endless relitigation of custody issues serves the interests of no one, including the children involved.

The utility of settlements respecting custody and access would be considerably diminished if parties could agree to a consent order and then be permitted to resile from it without meeting a considerable threshold test of change in circumstances in the condition, means, needs or circumstances of the child or the ability of a parent to meet the needs of a child which materially affects the child and which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order . [emphasis added] In Milne v Milne , 2007 ABQB 641 , Justice Veit commented at para 46 that “[i]n a general way, when a party knowingly consents to a parenting regime, that parent is not entitled to withdraw, or undermine, their consent until there has been a material change of circumstances: promises and undertakings should be kept . [emphasis added] D.

Evidence of Material Change – the Passage of Time and Cumulative Change [ 78 ] A material change in circumstances is not established just because of the passage of time. As Justice McLachlin said in Gordon v Goertz at para 12 , “[c]hange alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way.” Justice Smith put this point as follows in Gray v Wiegers , 2008 SKCA 7 at para 25 : [25] ....

It is my view that mere passage of time and increased maturity of the child does not, in and of itself, constitute a material change of circumstance as is required by s 17(5) of the Divorce Act and the case law that has interpreted that section. Were it otherwise, there would be an automatic right to seek variation of custody orders on a regular basis every few years. This is clearly contrary to the established law.

While the reviewing judge may, of course, take into account that a child’s needs may change as he or she matures, it is necessary to go further to determine whether and to what extent those changes have, in the case before the reviewing judge, made the original order inadequate. [ 79 ] In AR v JU , 2021 ABCA 337 , the Court of Appeal wrote at para 66 that [66] A “change in the needs or circumstances of the child” is not established by showing that there has been a significant event or events in the time period prior to the hearing.

The fact that there might have been a significant set of events affecting a parent, howsoever long that might have lasted, is not the same thing as a material change in the ongoing means, needs or circumstances of the children. The material change must affect the children, not just the parents. It must also be a real “change” in the sense of affecting how the lives of the children will unfold from the point of the change and thereafter that was not anticipated when the earlier order or judgment was made.

A temporary or transitional adjustment in the lives of the children is not necessarily a “change” for these purposes. [ 80 ] But as time advances, a child’s circumstances, the parents’ circumstances, and the parents’ abilities to meet the child’s needs

may change too. See, e.g., Caharel v Caharel, 2008 ABQB 238, Ross J at paras 20-24; Edwards v Basaraba, 2015 ABQB 594, Gill J atparas 93-95; Witt v Johnson at para 51. The maturation of children along with changes in circumstances bearing on a parent’s ability toparent or to promote the best interests of the children may cumulatively provide evidence of a material change in circumstances. Anexample is provided in Burg v Burg at paras 14-18: [14] In this case, the divorce judgment was granted on August 28, 2016, when the youngest child was not yet in school.

When thisapplication was heard before the chambers judge on August 6, 2020, the youngest child was almost seven years old, the middle childwas almost nine years old, and the eldest was ten years old, all three by then full-time in school. Now, another year has passed, and thechildren are eight years old, ten years old, and eleven years old, in grades 3, 5 and 6, respectively. [15] When the divorce judgment was granted, the father was employed as a construction worker, with hours from 9 am to 5 pm eachday, Monday to Friday.

He is now employed as a teacher, whose hours of work will generally match those of the school age children,and he has approximately two months’ summer vacation, matching that of the children. [16] Since the divorce judgment was granted, the mother has a new partner who has four children that live with the couple, thoughthere are few details on the record as to what this arrangement entails. [17] There is no dispute that the father must meet the threshold for variation of a parenting order set out in Gordon.

The first branchof the test requires “a change in the condition, means, needs or circumstances of the child and/or in the ability of the parents to meet theneeds of the child”. Counsel for the mother concedes that the evidence supports a finding of such change. We agree that there has beenchange in the circumstances of the children meeting the first branch of the test. [18] The second branch of the test requires change “which materially affects the child” .... In our view, the chambers judge made apalpable and overriding error in concluding there was no such material change.

The changes in the family circumstances in the last fouryears are such that, cumulatively, they could not help but “materially affect” the children. The cumulative effect of the passage of timeand the children’s advancement through elementary school, the change of the father’s occupation so that his

schedule approximatelymatches that of the children, and the addition of four children to the household where these three children reside, amounts to a change incircumstances that materially affects these children. [emphasis added] [81] In Bergen v Bergen, 2008 ABQB 237 at para 43, Justice Veit noted that “[c]ase law establishes that the increasing age of achild requires the court to give potentially changing weight to a child’s wishes,” keeping in mind the age of the child and the distinctionbetween a child’s wishes and the child’s best interests. See also Edwards v Basaraba at para 95. V.

Did reviewable error occur in Dr. Pickering’sdetermination that a material change in circumstances hadoccurred? A.

The Standard of Review [82] In Burg v Burg, the Court of Appeal described the standard of review applicable to a determination that a material change incircumstances has occurred: [11] Whether there has been a sufficient change in circumstances to trigger a reopening of a parenting order under s 17(5) of theDivorce Act, RSC 1985, c 3 (2nd Supp) is largely a factual decision that will not be reversed on appeal, absent an error of law, unless thedecision is unreasonable or based on a palpable and overriding error: Andrew v Andrew, 2021 ABCA 90 at paras 8, 16-17. [emphasisadded] At para 8 of Andrew, the Court of Appeal wrote that [8] ....

Whether there has been a sufficient change of circumstances to trigger a reopening of parenting is largely a factual decision,and the ruling of a chambers judge on the issue will not be reversed on appeal absent an error of law or an unreasonable finding of fact:Van de Perre v Edwards, 2001 SCC 60 at para 13, [2001] 2 SCR 1014; Fleckenstein v Hutchison, 2009 ABCA 320 at para 23, 460 AR386. [83] These are descriptions of the standard of review for a question of mixed law and fact – hence the possibility of reversal on anerror of law. [84] However, in Unterschultz v Clark, 2022 ABCA 335, the Court of Appeal stated that [38] .... whether there has been a “material change of circumstances” is a question of fact in each case. [emphasis added] The Court of Appeal, though, went on in the next paragraph to confirm that [39] ....

Any material change of circumstances must be a change from the original findings supporting the spousal support award thatwas not and could not reasonably have been anticipated at the time of those findings: Willick v Willick, (SCC), [1994] 3SCR 670, 688, 716-18. [emphasis added] [85] In my opinion, Burg and Unterschultz do not differ on the standard of review respecting determinations of a material changein circumstance.

One aspect of the determination is the legal test described by Justice McLachlin in Gordon v Goertz (above) and byJustice Sopinka in Willick at 688 (“In deciding whether the conditions for variation exist, it is common ground that the change must be a

material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation”). If a determination of material change shows that the legal test was not applied or was not properly applied, then there is an “extricable error of law” and the determination will be reversed on appeal.

But if the proper test is employed, the application of that test to the facts as found will be a question of fact and subject to the “palpable and overriding error’ standard of review.” I take para 38 of Unterschultz to be referring to a determination that employs the correct legal standard. The assessment of the evidence as it falls under that correct legal standard would be a question of fact. B. The Material Change Determination 1. The Determination of Material Changes in Circumstances [ 86 ] Dr.

Pickering’s decision was, by the parties’ agreement, founded on information set out in e-mails between them and their written submissions. Dr. Pickering made the following comments respecting the change in circumstances in

part III of the Award: 1. There was a question whether or not there had been a material change in circumstances for this matter to be reviewed. The father indicated that there had not been and the mother that there was due to the changes in her relationships. I accepted the mother’s view on this matter. .... 3. The 4/4

schedule ... was put in place to deal with young children not yet in school. Such is not the case any longer so other schedules can be considered .... 5. .... Concerns about a change per se for children is not a large reason to consider a different parenting time schedule, unless there have been other significant and a large number of changes, which is not the case here. 2. The Facts and Material Change Determination [ 87 ] Again, the MoS were entered into in 2018 and the Divorce Judgment in November 2020. The 2021 Award varied some troublesome aspects of the prior parenting arrangement but preserved and presupposed that prior parenting arrangement. (

a) Starting Point of the Assessment [ 88 ] In my opinion, the material change in circumstances should be assessed from October 2021 when the 2021 Award was made. In October 2021 the parties in effect reaffirmed or reconfirmed the parenting arrangement in place prior to that point and simplified some aspects of that arrangement. (

b) The Mother’s Relationships [ 89 ] Dr. Pickering found that the changes in the Mother’s relationships established a material change in circumstances. [ 90 ] The Mother summarized her position respecting material change in circumstances in her second submission (AR 62): I would argue that there have been substantial and important changes in the children’s lives over the last several years. These include: a.

Establishment of a familial relationship with [her partner] and [her partner’s daughter]. b. [T.] and [his dog] moving into my house and becoming part of our family. c. [M.’s (one of the children’s)] GAD and ADHD diagnoses and pharmaceutical management of the same. d. Children growing older, more independent, and more expressive of their individual desires, including this proposed change in parenting time. [ 91 ] The Mother referred to two sets of relationships. [ 92 ] The first was with T. The Mother stated that “[T.] moving in with us has no relevance to a change from a 4/4 and 7/7

schedule as he is here less than half the time and has an unpredictable schedule:” AR 31(3), see 32(7). T. does not have a child and does not have a parenting role. I infer that he would be (at most) a non-parental adult of some significance to the children. [ 93 ] As regards T., Dr. Pickering’s reference to “relationships” is ambiguous. If Dr. Pickering was referring to the relationship with T. as one of the relationships supporting a material change, his finding was pro tanto based on a factual error and misunderstanding of the Mother’s submissions.

If he considered T. significant to parenting despite the Mother’s comments, in my opinion, this would be an unreasonable factual error, supported by no reasons justifying rejection of the Mother’s observations. [ 94 ] However, I will assume that Dr. Pickering did not intend to embrace T. within the term “relationships.” [ 95 ] The second set of relationships concern the Mother’s partner and her partner’s daughter.

The Mother stated that “our desire to do more as a family has increased, the children have become older and developed strong bonds with [her partner and daughter] and it has become increasingly difficult to

schedule time when all five children can be together:” AR 30. [ 96 ] The Mother’s relationship with her partner began in June 2019, before the 2020 Divorce Judgment. The Mother’s partner had been part of the children’s lives before the Mother and her partner were a couple: AR 49. The partner and her daughter issue had been

discussed before the 2021 Award was made. The Mother confirmed that “Yes we did discuss this with Dr. Pickering last year ....:” AR 30. [ 97 ] In my opinion, the relationship between the Mother and the children and the Mother’s partner and the partner’s daughter pre- dated the 2021 Award and was discussed prior to the 2021 Award being formalized. That set of relationships cannot be a material change of circumstances.

I refer to DB v MB , 2015 ABCA 15 at para 3 : “The chambers judge found that there was a change of circumstances as a result of the respondent’s remarriage and new child, but those facts were all known or reasonably contemplated at the time the order was made. What the chambers judge relied on as a ‘change’ was merely the status quo .” [ 98 ] I note as well that Dr. Pickering did not discuss the significance of the “live out” nature of the relationship of the Mother and her partner. Her partner and her daughter live in their own residence in Edmonton while the Mother’s residence is in another community.

I mention this only to distinguish the circumstances - if only in terms of physical (if not emotional) distance - from those in Burg v Burg at para 18 (“the addition of four children to the household where these three children reside ” [emphasis added]). [ 99 ] I find that Dr. Pickering either made an unreasonable factual error about the timing of the relevant relationships or made a legal error as to what events may constitute a material change of circumstances. (

c) The Children’s Ages [ 100 ] Dr. Pickering stated that “[t]he 4/4

schedule ... was put in place to deal with young children not yet in school. Such is not the case any longer so other schedules can be considered.” [ 101 ] If the starting point for assessment of a material change in circumstances were 2017, Dr. Pickering’s observation would be compelling. [ 102 ] However, in 2020, when the Divorce Judgment was granted, the children were nearly 11, 8, 7, and 5. They were school age. In 2021, when the parenting was varied, they were 12, 9, 8, and 6.

The 4/4 arrangement was formally confirmed, then, when the children were school age. [ 103 ] It is true that when the parties separated, the children were ages 7, 4, 3, and 2. And in 2018, when the MoS was signed, they were 8, 5, 4, and 3.

Were only the parenting arrangement in the MoS in issue, it would doubtless be fair to conclude that the arrangement was – even if only in part - an accommodation for the children’s young ages. (The ages of the children and time spent away from each parent were, the evidence discloses, important to the “interim” time in the parenting arrangement but the Father resisted the claim that age and time away from each parent was the rationale for the parenting arrangement as a whole.

The Father’s position is corroborated by the reference in the MoS to the parent’s work schedules, quoted below.) [ 104 ] By 2020 and 2021 the children were older and the parties continued with the 4/4 arrangement. The finding that “[t]he 4/4

schedule ... was put in place to deal with young children not yet in school” was not accurate. [ 105 ] I find that Dr. Pickering either made an unreasonable factual error about the ages of the children or made a legal error as to what events may constitute a material change of circumstances. (

d) Cumulative Changes [ 106 ] Dr. Pickering appeared to make a finding that a material change was not established on a cumulative basis, writing that “[c]oncerns about a change per se for children is not a large reason to consider a different parenting time schedule, unless there have been other significant and a large number of changes, which is not the case here. ” [emphasis added] [ 107 ] The Mother’s counsel suggested that Dr. Pickering implicitly found a material change in circumstances “as may be gleaned from his comments as to how the 7/7

schedule may overall be better adapted for the Children at this time:” written submissions para 78. [ 108 ] I should avoid re-writing Dr. Pickering’s award. He specified that he found a material change in circumstances based on the Mother’s account of her relationships. I countenanced some modest supplementation justified by context, but I should not provide new reasons for him. See Vavilov at para 96 . [ 109 ] Moreover, there is a danger in looking to Dr. Pickering’s best interests’ assessment as amounting to an implicit material change in circumstances assessment.

This approach gets the order of the analytical process wrong. As the Court of Appeal said in Andrew at para 12 , [12] It is not open to an applicant to argue that the parenting arrangement is not, in the applicant’s opinion, consistent with the “best interests of the children” and use that as a change of circumstances. That approaches the problem from the wrong end. The applicant must demonstrate a change of circumstances before the parenting issues can be reconsidered.

The appellant argues that if counsel is appointed for the children, and a new Voice of the Child report ordered, sufficient change would become apparent. Again, as a threshold the appellant must show a sufficient change to justify that sort of relief being granted. (

e) Changes in the Children’s Lives [ 110 ] The Mother referred to psychological challenges that one of the children is facing, although the Father challenged the conclusiveness of the diagnosis, stating that the issues had not be addressed by the child’s pediatrician: AR 77. Perhaps because the factual submissions on this point were conflicting or inconclusive, Dr. Pickering did not refer to these psychological challenges as contributing to a material change in circumstances. [ 111 ] The Mother reported that two of the children have come out as non-binary and three children have come out as lesbians. The

Mother’s partner teaches anthropology of gender and sexuality. Dr. Pickering did not refer to these developments or the Mother’s partner’s area of specialization as contributing to a material change in circumstances. [ 112 ] By Dr. Pickering’s lack of reference to the foregoing matters as supporting a material change in circumstances, I consider Dr. Pickering to have been of the view that these matters did not contribute to a material change in circumstances. I do not consider Dr. Pickering’s assessment to have been unreasonable. [ 113 ] The Mother referred to complaints by the children about (e.g.) transitions.

Dr. Pickering made no mention of the children’s perspectives in finding a material change in circumstances. This, in my view, was an appropriate omission. Rather than rely on a parent’s reporting of what a child is alleged to have said, it is preferrable to transmit a child’s views through an objective reporter such as counsel for the child (assuming the child is of an age where counsel for the child is appropriate): see, e.g., SK v DG , 2022 ABQB 425 , Loparco J. This matter involved no independent assessment of the children’s views.

I note that the Arbitration Agreement provided, at the mediation before arbitration stage, for the Parenting Coordinator to interview the children privately or with the parents together or individually (clause 22). Clause 9 of the PC Order stated that “[w]here it is necessary for the Parenting Coordinator with a child, either alone or with the parents, the consent of the parents is hereby dispensed with.” I agree with the Mother’s counsel that the lack of evidence is not “cause for complaint:” written submissions para 55. I merely register the absence of evidence. (

f) The Parties’ Work [ 114 ] Dr. Pickering noted at III.3 that “[t]he 4/4

schedule over an extended period of time is very unusual in my experience ....” I accept that his observation was correct. At this point, I find that Dr. Pickering was not considering the material change in circumstances issue. The foundation for that unusual arrangement, the primary unusual fact, was the Father’s work schedule. He works 4 days on, 4 days off. The parenting arrangement permitted him to have parenting time on his days off. He had this work

schedule at the time of separation and he continues to have this work schedule. The Father’s work

schedule supported no change in circumstances. [ 115 ] The Mother works at a University. She did so at the time of separation and does so now. Doubtless there would be variations in her

schedule from year to year, as with any university teaching appointment. That was true before and will be true in the future. Her work

schedule supported no change in circumstances. [ 116 ] I again distinguish Burg v Burg at para 18 (“the change of the father’s occupation so that his

schedule approximately matches that of the children”). In this case, the father’s work

schedule had matched his parenting time. The Award drew his work

schedule and parenting out of alignment. [ 117 ] At AR 48, the Mother quoted from

Schedule B to the MoS: This

schedule did commence on June 19, 2017 and has continued on an 8-day rotation since, and will continue on an 8-day rotation going forward, depending on either parent’s work schedule. In the event that either parent’s work

schedule changes, the parenting time shall be revised to accommodate same. I agree with the Mother’s counsel that a material change in circumstances need not turn on a change in either party’s work schedule. A change in work

schedule is neither a necessary nor a sufficient condition for variation of the parenting arrangement: written submission para 91. However, by way of an observation, work schedules were evidently important to the parties in devising their parenting arrangement and so should warrant consideration in a variation application, should a material change in circumstances be established. 3. Conclusion [ 118 ] Dr. Pickering relied on facts that existed to the knowledge of the parties at when the MoS, the Divorce Judgment, and 2021 Award were made.

He relied on facts that had not changed in finding a material change in circumstances. Dr. Pickering, then, made unreasonable factual errors or erred in law. That is, there was an extricable error of law. He did not apply the correct legal test for determining whether a material change in circumstances had occurred. [ 119 ] There has been no material change in circumstances since the 2021 Award and the 2020 Divorce Judgment, relating to either the mother’s relationships or the children reaching school age. Dr.

Pickering identified no other material change in circumstances. [ 120 ] The threshold test not having been met for changing the parenting arrangement, the parenting arrangement should not have been changed. VI. Remedy [ 121 ] There are some complications respecting the appropriate form of disposition. [ 122 ] Subsection s 44(5) of the Arbitration Act provides that

(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal and give directions about the conduct of the arbitration. I do not consider ss 44(4) or (6) to be material. [ 123 ] At this point, on the record before me, the parties remain bound by the PC Order. [ 124 ] The parties remain bound by the Arbitration Agreement. Clause 10 of the Arbitration Agreement provides that (AR 11)

10. By submitting to arbitration of the issues involved in the parenting of the children, the parents hereby waive any right to further litigate those issues in court until such time as this agreement is ended for any reason whatsoever. Clauses 47-50 of the Arbitration Agreement deal with the termination of the agreement (AR 15). Clause 48 provides that 48. With their joint consent in writing, both parties may terminate this agreement .... Clause 49 provides that 49. The PC’s mandate terminates when: a. The term of service of this Agreement expires; b. The PC resigns, retires, or is deceased; c.

The parties agree to terminate the [Agreement], as noted above; or d. The court removes the PC. [ 125 ] The Father, at least, appears not to be willing to continue with Dr. Pickering as Parenting Coordinator. [ 126 ] In my opinion, on the information I have now, remitting the award to Dr. Pickering would not make sense. [ 127 ] The parties may jointly decide to terminate the Arbitration Agreement. A party may apply to terminate the PC Order and to remove Mr.

Pickering as Parenting Coordinator. [ 128 ] Alternatively, one or both parties may seek instead to have a new Parenting Coordinator appointed. (And a negotiated solution may yet be possible and could provide the best result for everyone.) [ 129 ] I am disinclined simply to set aside the Award and immediately re-impose the parenting arrangement that preceded the Award, pending the parties’ procedural decisions. [ 130 ] First, the record does not permit me to assess properly the best interests of the children. [ 131 ] The parties have been following the terms of the Award since January 6, 2023.

Over 10 months have passed under the 7/7 parenting arrangement.

The record did not set out evidence about the actual impacts of the Award on the children and parenting since January 6, 2023. [ 132 ] Further, the record did not include any objective reporting of the children’s views, should such reporting be appropriate given the ages and maturity of the children, a matter on which I cannot opine. [ 133 ] Second, changing parenting arrangements now (mid-November) would be unduly disruptive for the children and their schooling and school activities. [ 134 ] Third, I should take care not to impair the children’s best interests by imposing a change in parenting arrangements that might shortly be reversed. [ 135 ] In light of all these matters, my disposition of this appeal shall be as follows: (

a) The Award made by Dr. Pickering dated October 17, 2022 shall be set aside and the parenting arrangement in force immediately prior to that award shall be reinstated, but this disposition shall be stayed until January 31, 2024. (

b) During the period that the stay is in force, the parenting arrangement established by the Award made by Dr. Pickering dated October 17, 2022 shall continue (this parenting arrangement is continued by way of an interim order only). (

c) This stay or its terms may be terminated, extended, or varied by an Order of the Court of King’s Bench. (

d) An application to terminate, extend, or vary this stay or its terms may be heard by any Justice of the Court of King’s Bench. (

e) Subject to any direction or order I may make respecting such an application brought before myself, I do not waive any requirement for such an application or any other application to proceed through Family Docket Court. My hope is that the stay will permit the parties to work out the best way forward with an updated record. [ 136 ] Finally, I would be remiss if I did not mention that Mr. Harfield, counsel for the Mother, died not long after submissions concluded. I do not know whether this matter was his last court appearance or one of his last court appearances.

I appreciated both counsel’s thoughtful submissions. I was very impressed by Mr. Harfield’s creativity, insight, and breadth of understanding. His passing marks a loss for the Family bar and the bar of Alberta. Heard on March 10, 2023 with written submissions received March 17, 2023; further written submissions received June 29 and September 4, 2023; and heard on September 6, 7, and 28, 2023. Dated at the City of Edmonton, Alberta this 20 th day of November, 2023.

W.N. Renke J.C.K.B.A. Appearances: Stephen D. Harfield Queck & Associates for the Plaintiff (Respondent) Mark Dupres Long Family Law Group for the Defendant (Applicant)