Docket: 1921 Kelly Gene Bromm Appellant (Petitioner) - v. -, 2010 SKCA 149

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 149 Date: 20101206 Between: Docket: 1921 Kelly Gene Bromm Appellant (Petitioner) - and - Leanne Marie Bromm Respondent (Respondent) Coram: Lane, Richards and Ottenbreit JJ.A. Counsel: Gwen V. Goebel for the Appellant

Sherry L. Fitzsimmons for the Respondent Appeal: From: 2010 SKQB 85 Heard: October 18, 2010 Disposition: Appeal Dismissed Written Reasons: December 6, 2010 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Richards Ottenbreit J.A. I. Introduction [ 1 ] Kelly Gene Bromm (the “father”) appeals from the decision of the Chambers judge which varied the custody provisions of a consent judgment dated March 30, 2005 governing custody and access to the parties’ children.

The application before the Chambers judge also included child maintenance issues but the father does not appeal that part of the decision. For the reasons hereinafter set forth, the appeal of the father is dismissed. II. Background and Evidence [ 2 ] The father and Leanne Marie Bromm (the “mother”) were married in 1993 and separated in June of 2004. They have two children who are now aged ten and seven. On separation when the children were four and one, the couple entered into a separation agreement wherein they agreed to joint custody with the children’s primary residence to be with the mother.

The father was entitled to generous access pursuant to the agreement including each Tuesday afternoon and Thursday night and every second weekend. The children were primarily resident with the mother thereafter. [ 3 ] In March of 2005 the father applied for a divorce judgment and the terms of the separation agreement with respect to custody and access were incorporated into the consent judgment. [ 4 ] In July of 2008 the father brought an application to vary the custody arrangement to one of shared custody. Shortly thereafter the mother brought an application to vary child support.

The parties went to mediation and were able to resolve some of their issues but not all of the custody and access issues. A total of ten affidavits including 63 exhibits were filed by the mother and the father before the Chambers judge over the 18 months between the application date and when the matter was heard.

The father, in support of his application to vary, alleged that the mother had mental health issues including depression and obsessive compulsive disorder; that the original custody agreement, although suitable for the children when they were younger, was no longer suitable; that because neither child had been in school when the original custody agreement was reached there was no provision regarding school holidays; that the mother was not flexible regarding changes to the father’s access time or requests for additional access; that the mother was not consulting with the father before making decisions regarding the children’s activities and care; that the children’s psychological problems, as described by the mother were not present when the children were with the father; that the children when they were with the father repeatedly stated that they wished to spend more time with him; that the mother had left the children’s health problems untreated.

The father argued that he had adjusted his position at work to accommodate parenting needs, and that a child psychologist had described the children as balanced and happy in both homes. [ 5 ] The mother filed affidavits denying or challenging a substantial portion of the father’s allegations and alleged that the father inadequately parented the children, that his work

schedule disrupted their lives and that the children’s psychological issues were not appropriately handled by the father. A significant amount of the affidavit material exchanged between the father and the mother was controverted.

III. Chambers Judge’s Decision [6] The Chambers judge followed the two-step process respecting variation applications set out in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27. The father alleged that there had been a material change in circumstances, citing the wishes of the children,his current accommodation situation and the mother’s refusal to provide additional access. The Chambers judge determined that thesegrounds did not constitute a change in circumstances. The Chambers judge however, was satisfied that the original parentingarrangement was structured based on the tender years of the children.

She determined that the children’s eventual attendance at schoolwas not considered in the separation agreement and consent judgment, and that there had therefore been a material change in circumstances as contemplated by s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the “Act”).

She then went on to state thatparenting arrangements should be in the best interests of the children having regard to the change in circumstances and the children’scondition, needs, means and circumstances. [7] The Chambers judge disagreed with the father’s submission that the principle of maximum contact as set forth in s. 17(9) of the Actmandated a shared parenting arrangement and determined that the principle of maximum contact applied only to the extent that it wasconsistent with the best interests of the children.

She ultimately found that the changing ages, interests and increased maturity of thechildren supported a change in the custody arrangement, but that this was not sufficient to support a finding that shared custody was inthe best interests of the children. She noted that the children’s primary residence had always been with the mother and that the motherhad more time off to spend with the children. As well, the mother’s residence was in the same residential community as the school. Shedetermined that a shared parenting regime would be a significant change for the children.

Although she addressed the issue of thechildren’s health, she could come to no conclusion with respect to that issue because no medical evidence was provided by either partywith respect to that and the evidence was controverted on that issue. [8] The Chambers judge accordingly made minor changes to the custody arrangement to accommodate the sharing of school holidaysand to allow the children to spend meaningful time with the father on week nights. IV.

Parties’ Position on Appeal [9] The father argues that the Chambers judge erred in her application of the best interests of the children test by considering only theimpact of the change in circumstances when making her determination, by failing to apply the principle of maximum contact, byapplying a presumption of the status quo and by finding that evidence as to the wishes of the children was irrelevant.

He also argues thatthere was insufficient relevant uncontroverted evidence on material issues on which a final determination could be made and that theChambers judge erred by giving weight to irrelevant considerations, controverted affidavit evidence, inadmissible evidence and shortterm matters which did not have a direct application to the long standing best interests of the children.

The father’s counsel suggests thatthe custody determination, if any were to be made, should in any event only have been an interim one given the conflict in the materialfiled by each side. [10] The mother argues that the Chambers judge recognized and stated the relevant law by acknowledging the applicable sections of theAct, particularly ss. 17(1), (5) and (9), and correctly stating the best interests test.

The mother disputes the father’s grounds of appeal andthe father’s assertion that the Chambers judge relied on insufficient, irrelevant or contradicted evidence and submits that there wassufficient uncontroverted evidence to make a decision. [11] Both counsel before us acknowledged that the issue of whether the judge should make an interim order or final order was notaddressed before the Chambers judge and that neither party requested a viva voce hearing on the basis that the material was toocontroverted to allow a decision to be made on affidavit evidence alone. V.

Jurisdiction and Standard of Review [12] This Court in Stavric v. King, 2009 SKCA 6, 320 Sask. R. 37 recently stated the standard of review to be applied in custody mattersby appellate courts: [30] The applicable standard of review for courts appealing custody matters was considered recently by the Supreme Court of Canadain Van de Perre v. Edwards [2001 SCC 60 , [2001] 2 S.C.R. 1014]. There the court restated the standard of review to be appliedin custody matters by appellate courts. [31] Bastarache J., writing for the court, noted that the scope of appellate review in custody cases is extremely narrow.

He referred tothe decision of Madam Justice L'Heureux-Dubé in Hickey v. Hickey [ (SCC), [1999] 2 S.C.R. 518] where she stated: [Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciationof the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to theirchildren. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when

such decisions are reviewed. ... There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard ofappellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard theparties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court willhave a different appreciation of the relevant factors and evidence.

This approach promotes finality in family law litigation and recognizesthe importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, aserious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would havemade a different decision or balanced the factors differently. [Emphasis added.] [32] Mr.

Justice Bastarache noted that the issue in Hickey involved support orders but the principles applicable to support orders areequally applicable to orders concerning child custody. [13] The order appealed from is highly discretionary in nature and the basis for intervention on appeal is narrow.

In Lumberjack v.Canada (Attorney General), 2004 SKCA 137, [2005] 3 W.W.R. 445, the Court stated at para. 17: [17] The order was made in the exercise of discretionary power, a fact that serves to narrow the basis for intervention on appeal: Onlyif the chambers judge abused his discretion by acting on some wrong principle, by disregarding some material matter of fact, or byfailing to act judicially, is the Court of Appeal at liberty to interfere. Either that or the result must be so plainly wrong as to inviteintervention on that basis: Rimmer v. Adshead, 2002 SKCA 12 , [2002] 4 W.W.R. 119 (Sask.

C.A.). [14] Where findings of fact are rendered on the basis of affidavit evidence alone without the benefit of cross-examination, it is open toan appellate court to evaluate the reasonableness of the findings: Valley Beef Producers Co-operative Ltd., et al v. Farm CreditCorporation, 2002 SKCA 100, 218 D.L.R. (4th) 86 at paras. 117-118. VI.

Analysis [15] The two issues on this appeal are: (1) was there sufficient uncontroverted evidence for the Chambers judge to make her determination; and (2) did the Chambers judge err in her determination that there was a change in circumstances and in the determination of what the bestinterests of the children were.

(1) Sufficient Uncontroverted Evidence [16] There must be a sufficient evidentiary basis for the Chambers judge to properly assess the issues in play, otherwise the decision willbe set aside or sent back for further evidence. In Zaba v. Bradley (1996), (SK CA), 137 Sask. R. 295 (C.A.), theCourt found the evidentiary record was so sparse with respect to a number of crucial matters that the Court would not undertake anassessment of the question before it and returned the matter to the Chambers judge for a viva voce hearing. [17] Likewise in Twist v. Twist, [1997] S.J.

No. 487 (QL), (SK C.A.), Cameron J.A. wrote at paras. 1-2: [1] Given the state of the evidence before the learned chamber judge—affidavit evidence which was partially inadmissible, largelycontradictory, and materially deficient—we are all of the view there was an insufficient factual basis for the making of the custody orderin issue. Accordingly we have decided to set the order aside and remit the matter to the Court of Queen’s Bench for determination, if need be, along the lines of that suggested in Bradley v. Zaba, (1996), (SK CA), 18 R.F.L. (4th) 1 (Sask.

C.A.). [2] The contradictions in the affidavits are many and obvious, and we need not comment upon them, except to say that to the extentthey concern relevant matters of importance to the issue, they do not provide an appropriate evidentiary basis for making findings offact.... [18] However, the Chambers judge’s decision will only constitute a reviewable error if the evidentiary record is lacking to the point thatit cannot sustain her findings of fact. [19] The father alleges that there was significant and highly controverted evidence on material issues ranging from the relationshipbetween parent and child, to health issues, to the maturity level of the children—in total, approximately 14 points which the father claimsare highly controverted.

The father argues that the Chambers judge did not at any point make a finding that there was sufficientuncontroverted evidence to make a final determination. This is an argument which first appears on appeal. The father also argues that

even if the issue was not raised by the parties, the Chambers judge nevertheless had a duty to determine whether there was sufficientuncontroverted evidence. [20] It is implicit in the decision of the Chambers judge that she determined there was sufficient uncontroverted evidence on the materialissues for her to be able to find a change in circumstances and determine the best interests of the children. The Chambers judge is notobliged to expressly state that she found the evidence before her as a whole to be adequate to allow her to make a decision.

The 14controverted points raised by the father were dealt with by the learned Chambers judge by either making a finding of fact or addressingthe issue, or declining to make a finding of fact, or determining that the point although controverted was not material or essential to herdetermination of the best interests of the children on all of the evidence.

Given her careful finding of facts and her declining to find somefacts in the absence of evidence, it is obvious that the Chambers judge felt the evidence on the whole was sufficient to allow her to makea decision. [21] The evidentiary record as controverted as it is, is not lacking to the point where the Chambers judge had no proper basis for herdecision. Significantly, at the time this matter was argued in Chambers, neither party suggested the Chambers judge had an insufficientfoundation of fact, uncontroverted or otherwise, on which to make a decision.

The Chambers judge had, on the whole, sufficientuncontroverted evidence as it related to the change in circumstances, the impact of the change in circumstances and the children’s overallbest interests. [22] Although Valley Beef Producers Co-operative, supra deals with the issue of the findings of material fact made by the Chambersjudge on affidavit evidence alone, the standard of reasonableness applicable in that case is equally applicable to the issue of theChambers judge’s implicit determination that she had sufficient uncontroverted evidence upon which to make a decision.

The judge’sreview of the evidence and the weight to be given to that evidence in this context must be given considerable deference. Given thevoluminous evidence before the Chambers judge as well as her careful review of the evidence, the issues at play in this case, the reliefsought, the arguments as framed by the parties and the best interests of the children, it was a reasonable conclusion that the evidentiarythreshold necessary to make a decision based on all the uncontroverted evidence had been reached.

This, coupled generally with thedeference accorded to judges on custody matters, even in the case of a decision based on affidavit evidence, suggests that in this case noerror was made by the Chambers judge on this issue.

(2) Did the Chambers Judge Err re the Change in Circumstances and the Best Interests of the Children [23] The father argues that the Chambers judge, in applying the best interests test, considered only the impact on the status quo of thechange in circumstances when she should have considered the entirety of the children’s current situation. This argument amounts to asubmission that the Chambers judge in deciding what was in the best interests of the children, considered only the fact that the childrenhad matured six years and had entered school. This argument cannot succeed.

The test as to how the best interests of the child isapproached on a variation is stated by McLachlin J. (as she then was) in Gordon v. Goertz, supra: [17] The threshold condition of a material change in circumstance satisfied, the court should consider the matter afresh withoutdefaulting to the existing arrangement: Francis v. Francis (1972), (SK CA), 8 R.F.L. 209 (Sask. C.A.), at p. 217.

Theearlier conclusion that the custodial parent was the best person to have custody is no longer determinative, since the existence of materialchange presupposes that the terms of the earlier order might have been different had the change been known at the time. (Willick v.Willick, supra, at p. 688, per Sopinka J.) The judge on the variation application must consider the findings of fact made by the first judgeas well as the evidence of changed circumstances (Wesson v. Wesson, supra, at p. 194) to decide what custody arrangement now accordswith the best interests of the child.

The threshold of material change met, it is error for the judge on a variation application simply todefer to the views of the judge who made the earlier order. The judge on the variation application must consider the matter anew, in thecircumstances that presently exist. [18] Section 17(5) of the Divorce Act directs that the judge must consider the child's best interests "by reference" to the materialchange in circumstances. However, the inquiry cannot be confined to that change alone, isolated from the other factors bearing on thechild's best interests. In Willick v.

Willick, supra, L'Heureux-Dubé J. discussed (at pp. 734-35) the scope of review of support orders inthe context of similar wording in s. 17(4): Once a sufficient change that will justify variation has been identified, the court must next determine the extent to which it willreconsider the circumstances underlying, and the basis for, the support order itself. For the reasons below, I believe that it is artificial fora court to restrict its analysis strictly to the change which has justified variation.

Moreover, while a variation hearing is neither an appealnor a trial de novo, where the alleged change or changes are of such a nature or magnitude as to make the original order irrelevant or nolonger appropriate, then an assessment of the entirety of the present circumstances of the parties and the children which recognizes theinterrelationship between the many factors to be considered is in order. [Emphasis added by S.C.C.] The same principle holds true when an applicant is able to demonstrate a material change in circumstances in a custodial variationproceeding.

In order to determine the child's best interest, the judge must consider how the change impacts on all aspects of the child'slife. To put it another way, the material change places the original order in question; all factors relevant to that order fall to be consideredin light of the new circumstances.

The Chambers judge clearly used this approach. The Chambers judge in her analysis went on to consider factors other than just the children’s changes in age and enrollment in school.

In particular, she noted that the mother had always been the primary caregiver and that shared custody would represent a significant change; that the mother did not work Wednesdays and thus had more time to spend with the children; that the mother and her husband provided a two-parent home; that the mother was able to take the children to and from school; that the father’s residence is not located in the same residential community as the children’s school; and that the children have been doing much better since the parents attended high conflict mediation. [ 24 ] The father argues that in determining what was in the best interests of the children the Chambers judge did not properly consider the principle of maximum contact.

This argument cannot succeed. The Chambers judge correctly stated that s. 17(9) of the Act does not provide that the maximum contact principle alone provides a sufficient basis upon which to order shared parenting. This comment was in the context of the argument made by the father that he wanted a shared parenting arrangement which would provide virtually equal time to each parent, which would have amounted to shared parenting. In fact, the order of the Chambers judge gave the father further significant time during the school holidays and on Tuesday evenings.

Her treatment of the issue does not mean that she then dismissed the issue as irrelevant. She assessed this principle in the context of the children’s best interests. [ 25 ] The father also argues that the Chambers judge in making her decision was operating under a presumption in favour of the status quo. This inference is not supported by the written reasons. The Chambers judge was entitled not only to take into account the change in the status quo, but was required to do so as part of her broader consideration of the children’s condition, means, needs and circumstances.

There is no evidence that she stopped her inquiry at the status quo and that she did not assess the children’s best interests against the proposed new circumstances and its impact on them. Indeed, at para. 43, she specifically said her decision took into account “… the children’s condition, means, needs and circumstances.” [ 26 ] The father argues that the Chambers judge erred by finding the children’s wishes to be irrelevant. The Chambers judge found that the father’s evidence regarding the wishes of the children could not be used to support his request for a shared parenting arrangement.

Beyond this, it was open to the Chambers judge to give limited or no weight to the wishes of the children. She observed that given their ages and maturity levels, their wishes would not normally be taken into account in structuring a parenting arrangement. In this case, the evidence regarding the children’s wishes was limited and inconclusive. In the context of conflicting evidence regarding the children’s wishes, it is open to the Chambers judge to decline to make a finding on the issue and to proceed to base the decision on other factors.

This argument cannot succeed. [ 27 ] The father’s argument that the Chambers judge erred in law and fact by giving weight to irrelevant considerations, controverted affidavit evidence, inadmissible evidence and short-term matters cannot succeed. The father focuses primarily on the letters from the psychologists attached to his own affidavit. These were proffered by the father as evidence that the children are doing relatively well and are happy. The observations of the psychologists that the children are happy and seem to be doing well is corroborated by the emails between the parties to that effect in any event.

Although the content of the letters is not sworn to in an affidavit by either psychologist, it is clear that the Chambers judge gave the letters only limited weight in the context of her discussion of the health issues and she was in any event unable to draw conclusions on these issues from the evidence before her. [ 28 ] We can find no error in the approach taken by the Chambers judge to her analysis of the best interests of the children. VII.

Conclusion [ 29 ] There is no material error, or misapprehension of the evidence, or error of law by the Chambers judge in proceeding on the evidence she had before her and in her determination of the children’s best interests and her crafting of a suitable order. Accordingly, the appeal is dismissed. The mother shall have her costs in the usual way. DATED at the City of Regina, in the Province of Saskatchewan, this 6th day of December, A.D. 2010. ___ “Ottenbreit J.A.” ___________________ Ottenbreit J.A.

I concur ____ “ Lane J.A.” ______________________ Lane J.A. I concur ___ “Richards J.A.” _____________________ Richards J.A.