Docket: CACV2318 Chad Kemery Applicant (Respondent) - v. -, 2012 SKCA 82

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 82 Date: 2012-09-14 Between: Docket: CACV2318 Chad Kemery Applicant (Respondent) - and - Melanie Kemery Respondent (Appellant) Before: Herauf J.A. (in Chambers) Counsel: Gerald Heinrichs for the applicant James Vogel for the respondent

Application: From: DIV No. 7 of 2009, Judicial Centre of Regina Heard: September 12, 2012 Disposition: Dismissed Written Reasons: September 14, 2012 By: The Honourable Mr. Justice Herauf Herauf J.A. [ 1 ] On August 28, 2012 a Chambers judge granted an interim order providing that the parties equally parent their 5½ year old daughter (the “child”). The Chambers judge also ordered that the parties shall care for the child on a three-day/three-day schedule. The mother appealed the decision which triggered the automatic stay provision in Rule 15(1) of The Court of Appeal Rules .

The father applied to lift the automatic stay so that the parenting arrangement set out above can continue until the appeal is determined or otherwise dealt with. [ 2 ] For the brief reasons that follow, I decline to order that the stay be lifted. [ 3 ] On February 23, 2009 an interim order was granted that permitted the father to parent the child on alternate weekends from Thursday evening to Sunday and for one evening overnight in the other week.

The parties executed an Interspousal Contract in June 2009 that changed the situation to one where the father had the child for alternate weeks from Thursday at 5:00 p.m. to Monday at 5:00 p.m. and one day during the week when the child was with the mother. Both the interim order and the Interspousal Contract provided that the parties have joint custody of the child with primary residence to the mother.

This arrangement has been the status quo and the parenting arrangement has been in place since June 2009 which is slightly more than three years. [ 4 ] The father applied by notice of motion and application for variation for an order granting equal and shared parenting of the child and, if necessary, for an order varying the February 23, 2009 interim order. [ 5 ] The application was opposed by the mother on the footing that the issue should proceed to pre-trial and trial and in the meantime the long-standing status quo parenting arrangement should continue. [ 6 ] As noted the father’s application was successful.

The Chambers judge felt that he could proceed on the basis that s. 9.3(

n) of the Interspousal Contract contained a provision that the parties “recognize that it will be necessary to modify the parenting plan once [the child] is in school”. The child started kindergarten in September of 2012. [ 7 ] The Chambers judge found the affidavit evidence demonstrated a material change in circumstances based upon the following factors which are set out at para. 8 of his Fiat. They read as follows: i. [The child] is no longer a baby. She is of an age where it is reasonable for her to spend more time away from her mother and has a need to spend more time with her father. ii.

The parents have in the summer months extended parenting time for the father beyond that contemplated by the interspousal agreement. iii. The father’s work

schedule has changed such that he is now able to provide full-time care on a predictable

schedule and thus his ability to meet [the child’s] needs has changed in a fundamental way. iv. [The child] is about to start kindergarten. [ 8 ] Having found a material change in circumstances, the Chambers judge then determined that it was in the best interests of the child to spend more time with her father, who, because of his flexible work

schedule could parent the child without having to take her to daycare on the dates when he is parenting. [ 9 ] The mother takes issue with the decision of the Chambers judge. The mother’s

interpretation of the clause in question in the Interspousal Contract is entirely at odds with the father’s contention and the judge’s finding. The mother also takes great issue with the

failure of the Chambers judge to refer this issue to pre-trial. In the interim, she contends that the stability provided by following the status quo of the past three years should have been maintained. [ 10 ] The law relating to the lifting of the stay in child custody matters has been articulated many times. In Aalbers v. Aalbers , 2011 SKCA 156 , 385 Sask.

R. 141, Caldwell J.A. at para. 17 stated: [17] The general objectives of an application to lift a stay of execution are to prevent injustice, to ensure that the result is as fair and equitable as possible for all sides, to minimize prejudice, and to balance competing interests: Gerski v. Gerski , 2006 SKCA 66 , 285 Sask. R. 121. However, where children are involved, the primary objective of the Chambers judge is to determine whether it is in the best interests of the children to lift the stay or to allow it to remain in place: Wiegers v. Gray , 2007 SKCA 30 . In Wiegers v. Gray , Mr.

Justice Cameron said: [1] Applications of this nature, which is to say applications to lift the stay of execution of orders respecting the custody of a child, are heavily driven by the best interests of the child: Ebenal v. Ebenal , 2003 SKCA 130 ; Bader v. Styranka , 2004 SKCA 55 . It is thus necessary to approach these applications from the perspective of the child and the child’s welfare.

Generally, the central question is how the child is apt to be affected, should the stay be lifted or allowed to remain in place pending the determination of the appeal, having regard for such considerations as the potential for harmful disruption of the life of the child should the appeal succeed. [ 11 ] The reference to Wiegers is important.

Cameron J.A. concluded that it is necessary to approach these types of applications “from the perspective of the child and the child’s welfare”. [ 12 ] In this situation there was no dispute that the status quo for the past three years was that the mother had primary residence and the father had specified and generous parenting times. The change to the three-day rotation is significant. To lift the stay and permit this parenting regime to continue pending the appeal with the potential that a successful appeal would result in a reversion to the status quo would certainly not be in the child’s best interests.

The appeal can be heard in approximately 8 weeks. The parenting arrangement set out in s. 9.2 of the Interspousal Contract should continue until the appeal is determined. This would prevent any serious disruption to the child. I also note that the shared parenting regime is a fairly dramatic change from the status quo. The child is only 5½ years old and there was no direction that the shift to a three-day rotation would be implemented gradually. [ 13 ] To reiterate, the application to lift the stay is dismissed with costs to the mother fixed at $350.00.

The parties are directed to have the appeal set for hearing during the week of November 13 - 16, 2012. The appellant is to serve and file the appeal book and factum on or before September 26, 2012 and the respondent is to serve and file his factum by October 10, 2012. The parenting arrangement set out in s. 9.2 of the Interspousal Contract executed in June 2009 shall remain in place until the appeal is determined or otherwise disposed of. DATED at the City of Regina, in the Province of Saskatchewan, this 14 th day of September, A.D. 2012. “Herauf J.A.” Herauf J.A.