2012 SKCA 130 Date:, 2012 SKCA 130

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 130 Date: 2012-12-27 Between: Docket: CACV2318 Melanie Kemery Appellant - and - Chad Kemery Respondent Coram: Lane, Ottenbreit and Caldwell JJ.A. Counsel: James Vogel for the appellant Gerald Heinrichs for the respondent Appeal:

From: DIV No. 7 of 2009, J.C. of Regina Heard: November 15, 2012 Disposition: Appeal allowed Written Reasons: December 27, 2012 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell Lane J.A. [ 1 ] This is an appeal from an interim custody order which changed a joint custody arrangement with the primary residence of the parties’ six-year-old child being with the mother and the father having specified and generous access, to an equal shared parenting regime with each parent caring for the child on a three-day on, three-day off schedule.

The order further provided the parties were to equally share Christmas, Easter and summer school holidays. I. Background [ 2 ] The parties began living together in 2002, married in 2004 and have one child, a daughter, born December 23, 2006. The parties separated in August of 2008 and divorced in 2009. [ 3 ] On February 23, 2009, on the mother’s application, an interim order was made providing interim joint custody of the child with the primary residence with the mother. Specific access provisions were made.

The other provisions are not relevant to the matter before us. [ 4 ] Subsequent to that interim order, the parties negotiated an Interspousal Contract and Separation Agreement (the “Agreement”) and as it relates to their child it maintained the parties were to have joint custody with the primary residence being with the mother. Specific access provisions were set out and the Agreement specifically provided in clause 9.3(

n) that each party “recognize that it will be necessary to modify the parenting plan once [the named child] is in school”. This Agreement has essentially governed the relationship since it was executed on June 8, 2009.

The mother allowed the father additional access in the summer months to accommodate the parties’ schedules. [ 5 ] Relying on clause 9.3(n), and in anticipation of the child entering kindergarten in September of this year, the father made an application in June for a variation order granting shared and equal parenting between the parents, and for an order the child be entered into the separate school system when the mother had already entered the child into the public school system.

He also deposed his working arrangements and schedules had changed such that he was able to be a full-time parent as opposed to the mother being limited by her work schedule. His notice of motion referenced he was applying to vary the February 23, 2009 order. [ 6 ] The father, in his supporting material, deposed that the child, who was late in learning language with limited speaking skills at the time of the Agreement, was now a “very talkative and inquisitive girl”. He deposed that because she was born prematurely she learned to walk later than normal but now is “very active and athletic for a child her age”.

He also deposed he saw none of her earlier breathing problems. In sum he said the child “today is a completely different person from 2009, when the court order and settlement agreement were signed”. [ 7 ] The mother interpreted the clause grounding the father’s application differently. She says it means that when the child was in school they would modify the parenting plan to reflect the needs at that time and would reduce the father’s access time by eliminating the midweek overnight visits.

She says there has been no material change in the child’s circumstances and indeed, by the father’s own admission, the child was thriving. [ 8 ] Because we are all of the view the appeal must be allowed and the matter remitted to the Court of Queen’s Bench Family Division for a settlement conference and full hearing, we will make no comments on the trial judge’s findings. Suffice it to say some of the findings did not have a factual foundation and the mother’s

interpretation of clause 9.3(

n) may not be unreasonable as the Agreement provides that any modification would be done while the child is in school, not in anticipation of going to school as the respondent and the Chambers judge assumed. All of the issues are left to the Queen’s Bench judge hearing the matter. [ 9 ] This is why the matter must be sent back. The Chambers judge introduced his decision by setting out the interim order he was making, which mainly provided for equal parenting on a 50/50 basis with a three-day/three-day

schedule - a significant change from the earlier relationship. His order further provided for exchange times and holiday times but he did deny the father’s application to enter the child in the separate school system. [ 10 ] He then proceeded to give his reasons and noted that custody and parenting time was governed by the terms of the Agreement. His decision was based wholly on the Agreement and not the February 2009 variation order. He had no authority to vary the Agreement which had never been incorporated into a court order.

[ 11 ] This court in Graham v. Tomlinson , 2010 SKCA 101 cited with approval the decision of now Chief Justice Popescul in Belfour v. Belfour , 2007 SKQB 295 . Paragraph 20 of Graham reads as follows: As Popescul J. wrote in Belfour v. Belfour , 2007 SKQB 295 , 303 Sask.R. 33, neither the legislation nor the rules of court provide for an application to vary an agreement, as opposed to a court order: [12] Part of the relief sought is a variation of a memorandum of settlement . A settlement agreement is an arrangement between parties, akin to a separation agreement or interspousal contract, and not a court order.

Neither the applicable legislation nor The Queen’s Bench Rules allow for or contemplate an application for variation of an agreement. See Steiner v. McKnight (2001), 200 Sask. R. 232 , 14 R.F.L. (5th) 193 , 2001 SKQB 12 (Fam. Div.) . The appropriate procedure would be to bring a notice of motion claiming interim relief at which time the existence of the agreement would become a factor to take into account when determining the merits of the motion. Accordingly, the application, insofar as it pertains to the application to vary the memorandum of settlement, is dismissed. [Emphasis added.] See also Andrew v.

Andrew , 2008 SKQB 56 . There is a good policy reason for this approach. In the absence of a court order, the parties’ agreement should not be taken as controlling the Court’s discretion to fix an order that is in the best interests of the children.

As Popescul J. stated in Belfour , the agreement becomes a factor for the Court to consider, in much the same manner as a court would consider any existing arrangement for the children. [ 12 ] The February 2009 order did not provide for a review when the child was in school which was the basis for the Chambers judge to embark on his variation review. [ 13 ] Counsel for the respondent argues the application was by way of originating notice and the Agreement is the equivalent to a consent judgment. [ 14 ] Simply put the application is clearly by way of notice of motion and the Agreement does not incorporate the February 2009 order.

The Agreement deals with all matters in issue between the parties arising from their separation including division of family property, spousal maintenance, child maintenance, etc. Parenting was but one part of the Agreement and simply cannot be read as a comprehensive consent judgment. [ 15 ] The appeal is therefore allowed; the order issued below is struck, and the matter is to be set down for a settlement conference as soon as possible. The appellant shall have her costs of the appeal in the usual manner.

DATED at the City of Regina, in the Province of Saskatchewan, this 27 th day of December, 2012. “Lane J.A.” _______________________ Lane J.A. I concur “Ottenbreit J.A.” ______________ Ottenbreit J.A. I concur “Caldwell J.A.” _________________ Caldwell J.A.