Docket: CACV2395 Hilarie Margaret Jochems Appellant (Respondent) - v. -, 2013 SKCA 53

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 53 Date: 2013-05-13 Between: Docket: CACV2395 Hilarie Margaret Jochems Appellant (Respondent) - and - Tyler Jason Jochems Respondent (Applicant) Before: Caldwell J.A. (in Chambers) Counsel: James J. Vogel, for the appellant (respondent) W. Timothy Stodalka, for the respondent (applicant) From: 2013 SKQB 94 Heard: May 8, 2013 Disposition: Application Allowed Written Reasons: May 13, 2013 By: The Honourable Mr. Justice Caldwell

Caldwell J.A. [ 1 ] The parties are separated spouses who are parents of a 13 month-old girl. The father obtained an interim custody and access order with respect to the parties’ daughter (see: 2013 SKQB 94 ). The mother appealed from certain terms of that order. The father now applies to lift the stay of execution automatically imposed by Rule 15(1) of The Court of Appeal Rules upon the filing of the mother’s notice of appeal. [ 2 ] The background to this matter is more particularly set forth in the chambers judge’s reasons, but the salient facts may be summarised as follows.

When their daughter was three months old, the mother took her from the family home in Fleming, Saskatchewan, to Winnipeg, Manitoba, to visit the mother’s sister; however, the mother did not return to Fleming. She now resides in Winnipeg, at her parents’ home, with the parties’ daughter. When it became apparent to the father that the mother did not intend to return or to return the child, he commenced proceedings seeking joint custody and shared parenting of the child.

He then brought an application for interim orders requiring the mother to return their daughter to the vicinity of the family home in Fleming, granting the parties joint custody, directing equal parenting time, and requiring each party to pay child support and s. 7 expenses in accordance with the Federal Child Support Guidelines (SOR/97-175). The respondent did not oppose joint custody, but she did oppose orders requiring her to return the child to the jurisdiction or directing that the parties have equal parenting time. The father was successful. The relevant paragraphs of the interim order are: 1.

The parties shall have joint custody of Emrie Margaret Jochems born April 14, 2012; 2. The primary residence of the child shall remain with the respondent on the following terms: (

a) the petitioner shall have parenting time with Emrie in Brandon, Manitoba, on Saturday, March 23, 2013, from 10:00 a.m. to 5:00 p.m. The respondent shall deliver her to the petitioner, and the petitioner shall return her to the respondent at the McDonald’s restaurant on the No. 1 highway in Brandon, Manitoba or at such other location as the parties may agree upon; (

b) the petitioner shall have parenting time with Emrie in Brandon, Manitoba on Saturday, March 30, 2013 from 10:00 a.m. to 3:00 p.m. and on Sunday, March 31, 2013 from 10:00 a.m. to 3:00 p.m., with the exchange to take place as set out in clause (

a) above; (

c) the petitioner shall have parenting time with Emrie in Fleming, Saskatchewan, from 10:00 a.m. to 4:00 p.m. on Saturday, April 6, 2013 and 10:00 a.m. to 4:00 p.m. on Sunday, April 7, 2013. The respondent shall deliver her to the petitioner at his residence in Fleming on each day. The petitioner shall return her to the respondent on each day at a location in Moosomin, Saskatchewan to be designated by the respondent; (

d) the petitioner shall have parenting time with Emrie in Fleming, Saskatchewan from 12:00 noon on Saturday, April 13, 2013 until 12:00 noon on Sunday, April 14, 2013. The respondent shall deliver her to the petitioner at his residence in Fleming and the petitioner shall return her to the respondent at a location in Moosomin, Saskatchewan to be designated by the respondent; (

e) The petitioner shall have parenting time with Emrie in Fleming, Saskatchewan from 10:00 a.m. on Saturday, April 20, 2013 until 4:00 p.m. on Sunday, April 21, 2013 and from 10:00 a.m. on Saturday, April 27, 2013 until 6:00 p.m. on Sunday, April 28, 2013. The respondent shall deliver her to the petitioner at his residence in Fleming on each of April 20, 2013 and April 27, 2013. The petitioner shall return her to the respondent on each of April 21, 2013 and April 28, 2013 at a location in Moosomin, Saskatchewan to be designated by the respondent; 3.

If the respondent does not take up residency within a radius of 40 kilometres from Moosomin, Saskatchewan on or before 6:00 p.m. on May 3, 2013, the primary residency of the child shall thereupon be with the petitioner in Fleming, Saskatchewan. Thereafter, the respondent shall have liberal and generous parenting time with the child on such terms as may be agreed upon between the parties or as determined by the court on the application of either party;

4. If at any time on or before May 3, 2013 the respondent decides to resume residency with the child in Fleming, Saskatchewan, sheshall give 30 days written notice of her intention to the petitioner. Upon the expiration of the said 30 day period, the petitioner shallvacate the former family home in Fleming, Saskatchewan and shall deliver up exclusive possession thereof to the respondent. Thereafter,either party may apply on seven days notice for an order varying the parenting

schedule set out in paragraph 2, clauses (

a) to (

e) of thisorder; 5. The petitioner shall pay interim child support to the respondent for the months of March, April and May, 2013 in accordance withthe Guidelines. The petitioner’s 2011 annual income is determined to be $81,065.00 and the monthly support amount is determined to be$681.00. The amount of child support may be varied on the application of either party when a parenting

schedule has been establishedfor the child from and after May 3, 2013. … 8. A pre-trial conference shall be scheduled by the Local Registrar on an expedited basis, with the date to be set in consultation withcounsel but in any event within 60 days. [3] The mother appealed from the interim order on several grounds, but chiefly on the ground that the chambers judge erred invarying the status quo on an interim basis.

In her notice of appeal, she states the proper remedy would have been to maintain the statusquo (which, in her view, would mean she and the child would remain in Winnipeg and the child would have limited access to the father)and direct the matter to proceed to pre-trial conference on an expedited basis. She says by varying the status quo the chambers judge haserred because he failed to take the best interests of the child into account, in that such interests are best met by maintaining stability inthe child’s life.

Tangentially, she also says the chambers judge erred because he failed to order interim child support for more than threemonths as child support should not be contingent on the mother’s place of residence. [4] To be clear, there are no allegations that either the father or the mother is unfit to parent their child. The mother does say,however, that the father has not had care of his daughter for more than a few hours at a time.

This is, of course, largely due to the factthat she has taken the child to Winnipeg and has since then controlled the child’s limited access to the father. [5] With that, I turn to consider the father’s application to lift the stay of execution automatically imposed on the interim order underRule 15(1). The general objectives of an application to lift a stay of execution are to prevent injustice, to ensure that the result is as fairand equitable as possible for all sides, to minimize prejudice, and to balance competing interests: Gerski v. Gerski, 2006 SKCA 66, 285Sask. R. 121.

However, where a child is involved, the primary objective is to determine whether it is in the best interests of the child tolift the stay or to allow it to remain in place: Wiegers v. Gray, 2007 SKCA 30. In Wiegers v. Gray, Cameron J.A. said: [1] … It is thus necessary to approach these applications from the perspective of the child and the child’s welfare.

Generally, thecentral question is how the child is apt to be affected, should the stay be lifted or allowed to remain in place pending the determination ofthe appeal, having regard for such considerations as the potential for harmful disruption in the life of the child should the appealsucceed. In this respect, the objective identified in Wiegers v.

Gray of determining the best interests of the child mirrors the objective of thechambers judge in the application which was before him. [6] In his reasons for granting the interim order the chambers judge noted both parties had agreed the guiding principle in mattersconcerning the parenting of their child is “the best interests of the child”. He observed the parties had also agreed that what is in thechild’s best interests must be assessed having had regard to the principles outlined in Gordon v.

Goertz, (SCC), [1996]2 S.C.R. 27, i.e., the court must consider the relationship between the child and the parents, the desirability of maximizing contactbetween the child and both parents, the custodial parent’s reason for moving (in the exceptional case where it is relevant to that parent’sability to meet the needs of the child), and disruption to the child consequent on removal from family, schools and the community whichthe child has come to know. [7] When he turned to consider the evidence, the chambers judge found that, notwithstanding contradictions contained in the parties’respective affidavits, it was clear to him that the mother had unilaterally decided to take the child from the family home to Winnipeg, andto keep her in Winnipeg, without the consent or agreement of the father.

He further found the father had not subsequently condoned oracquiesced to this circumstance. The chambers judge found the reason for this move was that the mother preferred to live with herparents in Winnipeg than to live with the petitioner in Fleming. He then noted the mother had taken the child out of this jurisdictionwithout applying for a court order entitling her to do so. Finally, he found that she had, since leaving, “severely curtailed” the child’saccess to the child’s father.

However, and most tellingly, he found no compelling reason for the mother’s departure nor any compellingreason to suppose the abrupt move was in the best interests of the child. In this latter respect, he was careful to say: [31] … By “compelling”, I mean reasons strong enough to override the basic principle that it is in a child’s best interests to havemaximum contact with both parents.

In the absence of those reasons, it can hardly be said that it will be in a child’s best interests toreside in a distant community with only one parent. [8] The chambers judge found that the mother’s actions had deprived the father of the opportunity to parent their child in a“meaningful way”. Moreover, he predicted that, given the mother’s position on the application before him, those circumstances wereunlikely to change without an appropriate order. [9] He concluded the mother would not have been successful had she applied for an interim order authorizing her to move the childto Winnipeg.

In other words, he found it was not in the child’s best interests to move to Winnipeg. In doing so, he implicitly rejected theextant circumstances as being the status quo and then consciously turned his mind to fashioning an interim order which would see thecircumstances return to status quo (i.e., with the child residing in or near Fleming) in a way that would operate in the child’s bestinterests. In this respect, having given due consideration to the circumstances, as can be seen, the chambers judge chose to gradually

increase the child’s access to the father and thereafter to require the mother to return the child to the jurisdiction – preferably to the family home (with the mother having exclusive possession of it), or, failing the mother’s return, to confirm that the primary residence of the child would be with the father in the family home in Fleming. [ 10 ] With respect to paragraph 2 of the interim order, I see no potential harm to the child, nor any significant disruption to her young life, if the stay of execution is lifted so as to permit the structured transition of custody and access as had been directed by the chambers judge in his determination of what was in the child’s best interest.

Paragraph 2 of the interim order is entirely consistent with the acknowledgement in Gordon v. Goertz that it is desirable to maximize contact between a child and her parents. Moreover, it would appear to be a necessary order in the circumstances as, absent the order, there is no reliable arrangement as between the parties as to their parenting of the child.

In short, it appears to be in the best interest of the child to lift the stay with respect to paragraph 2 of the interim order. [ 11 ] As to the remainder of the interim order from which the mother has appealed ( i.e. , paragraphs 3, 4 and 5), without passing upon the merits of the appeal, I must underline that the standard of review in interim custody matters presents a considerable barrier to success. Put simply, the limited scope of the power of appellate review in these kinds of matters means the likelihood that the mother’s appeal will not succeed is greater than the likelihood that it will succeed.

Accordingly, it could be advantageous to the child to lift the stay of execution on the remaining paragraphs in question because circumstances would more quickly transition to the arrangement the chambers judge saw as being in the child’s best interest. [ 12 ] But, it is not that simple. This matter is complicated by the fact the parties are now scheduled to appear before a Queen’s Bench judge in a pre-trial settlement conference to be held on May 24, 2013. Both parties are of the view that the pre-trial conference proceeding is not stayed by reason of Rule 15(4), and they intend to proceed with it.

Whether that is the case or not, I would not dissuade them from doing so in the hopes that they might reach a mutually satisfactory resolution to this matter at the pre-trial conference. Accordingly, and to remove any doubt, I hereby lift the stay imposed under Rule 15(4) so that this might occur.

Nevertheless, given their intentions, I must be cautious to minimise the prejudice to either side by avoiding any tactical advantage in the pre-trial settlement conference by reason that I have lifted or declined to lift the stay of execution. [ 13 ] In the result, mindful that my decision must be driven by what is in the best interests of the child, I hereby lift the automatic stay of execution imposed under Rule 15(1) with respect to paragraph 2 of the interim order; but, in as much as the transition envisioned by the chambers judge should have occurred over five weekends in March and April, 2013, paragraph 2 is hereby modified such that the transition will now occur substantially in the manner directed by the chambers judge but over the ensuing five weekends, being May 25- 26, 2013 to June 22-23, 2013.

It should not be necessary to set out each date, time and place of exchange and access, etc.; however, if the parties have difficulties determining the necessary modifications to the transition

schedule which was directed by the chambers judge, then either party may, on three clear days’ notice to the other, request that the Registrar have this issue brought back before me for resolution. [ 14 ] As to the remaining paragraphs in question ( i.e. , paragraphs 3, 4 and 5 of the interim order), I hereby lift the stay of execution imposed under Rule 15(1); but, given the modification to paragraph 2 of the interim order, I direct that all references in those paragraphs to the date “May 3, 2013” shall hereafter be deemed to refer to the date “June 30, 2013”.

In addition, the father shall pay interim child support to the mother for June 2013 in accordance with paragraph 5 of the interim order. If the parties have any question as to what this means, either party may have the Registrar bring this issue back before me on three clear days’ notice to the other party. [ 15 ] Given the circumstances, although I would not foreshadow an unsuccessful pre-trial settlement conference, the parties should be prepared to file their appeal materials in short order and to have this appeal heard on an expedited basis during the June 2013 sittings of this Court.

Counsel for the mother indicated the mother’s appeal book and factum are ready. Undoubtedly, it would be advantageous to the child, and the parties, to resolve the appeal as quickly as possible – if matters are not earlier resolved at the pre-trial conference.

As such, I instruct the Registrar of the Court of Appeal to set the mother’s appeal to be heard as early as possible in the June 2013 sittings of this Court, and in any event before the week of June 24- 28, 2013, so that this Court might be in a position to issue the judgment in the appeal before the change of principle residence contemplated in paragraph 3 of the interim order might come into effect. The mother shall have the Queen’s Bench file delivered to the Registrar forthwith and shall thereafter file her factum and appeal book on or before May 17, 2013.

The father shall file his factum no later than May 31, 2013. If either party has difficulty meeting these timelines for filing appeal materials, that party may, upon three clear days’ notice to the other, request the Registrar to have this matter brought back before me for appeal management. [ 16 ] Costs shall be in the cause. DATED at the City of Regina, in the Province of Saskatchewan, this 13 th day of May, A.D. 2013. “Caldwell J.A.” _____________________ Caldwell J.A.