Docket: CACV2430 Robin Knudsen Prospective Appellant (Respondent) - v. -, 2013 SKCA 72

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 72 Date: 2013-07-03 Between: Docket: CACV2430 Robin Knudsen Prospective Appellant (Respondent) - and - Lianna Michelle Knudsen Prospective Respondent (Petitioner) Before: Ottenbreit J.A. (in Chambers) Counsel: R. Bradley Hunter, Q.C., and Kayla DeMars-Krentz for the prospective appellant Donald Hobday for the prospective respondent Application:

From: 2013 SKQB 216 Heard: June 26, 2013 Disposition: Application dismissed Written Reasons: July 3, 2013 By: The Honourable Mr. Justice Ottenbreit Ottenbreit J.A. [ 1 ] Lianna Knudsen and Robin Knudsen have a 15-year-old daughter, Julie. Ms. Knudsen filed an application to vary the parenting order dated August 29, 2012, made with respect to her daughter. She then applied for an order directing that a Voices of the Child report be prepared by Dr. Timothy J. Greenough for the purpose of determining the wishes of Julie concerning a proposed shared parenting arrangement.

In a Queen’s Bench decision found at 2013 SKQB 216 the Chambers judge made such an order. Mr. Knudsen seeks leave to appeal that determination. [ 2 ] As an initial matter, counsel for Ms. Knudsen argues that Mr. Knudsen’s application is out of time since the decision under appeal is dated June 4, 2013, and his motion for relief was served on June 20, 2013.

I need not deal with this argument in view of my determination in this matter that leave should not be granted even if the motion was served in time. [ 3 ] Unfortunately, the parties have been litigating over parenting arrangements since Julie was approximately three years old. Mr. and Ms. Knudsen’s last skirmish proceeded to trial in the fall of 2011 and it is the decision in that trial that Ms. Knudsen seeks to vary. [ 4 ] Mr. Knudsen argues that Ms. Knudsen has very quickly brought into issue again the parenting arrangement which was the subject of the recent decision of the Court of Queen’s Bench. Mr.

Knudsen also observes that Julie has been the subject of five Voices of the Child reports done between June 19, 2007, and June 1, 2011. [ 5 ] Before the Chambers judge, Ms. Knudsen argued that the current parenting arrangement pursuant to the last court decision was not working well and that her daughter would like her to return to Assiniboia and resume a prior week on, week off arrangement.

To that end, she intended to take up residence in Assiniboia to accommodate her daughter and applied for a variation of the parenting arrangement. [ 6 ] The Chambers judge observed that the parents have expressed completely opposite opinions respecting Julie’s wishes.

He was of the view that, given the conflicting affidavit evidence, it was clear that the child’s views were not being reliably communicated to the court and he was satisfied that an independent assessment of her wishes with respect to her mother’s proposed move back to Assiniboia and the resumption of a shared parenting arrangement would assist the court in deciding the application. On this basis, he ordered the Voices of the Child report to be done. [ 7 ] Mr. Knudsen filed a proposed notice of appeal containing the following grounds:

a) THAT the Learned Chambers Judge erred by ordering a Voices of the Child report.

b) The Learned Chambers Judge erred by ordering a Voices of the Child report when there was no material change in circumstance justifying a report.

c) The Learned Chambers Judge failed to consider the multiple psychological interviews upon the child, Julie Ann Knudsen as this will be the sixth psychological report.

d) The Learned Chambers Judge erred by using a standard for material change so low that virtually any circumstance could be used as a material change. [ 8 ] The test to be employed on an application for leave to appeal is well known and is set out in Rothmans, Benson & Hedges Inc. v. Saskatchewan , 2002 SKCA 119 , 227 Sask. R. 121.

It is necessary first to determine whether the proposed appeal is of sufficient merit to warrant the attention of the Court and, secondly, whether the appeal is of sufficient importance to the proceedings before the Court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court. Based on Rothmans , a number of subsidiary questions are central in deciding the issue of whether a proposed appeal is of sufficient merit to be considered by the Court and these include:

a. Is it prima facie frivolous or vexatious? b. Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, forinstance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? c. Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? d. Is it apt to add unduly or disproportionately to the cost of the proceedings? [9] It was acknowledged by counsel for Mr. Knudsen that the order of the Chambers judge was a discretionary order.

The standardof review with respect to a discretionary order is set forth in Rimmer v. Adshead, 2002 SKCA 12, [2002] 4 W.W.R. 119, at para. 58: 58 In turning to this issue, it is necessary to bear in mind that the powers in issue are discretionary and therefore fall to be exercisedas the judge vested with them thinks fit, having regard for such criteria as bear upon their proper exercise. The discretion is that of thejudge of first instance, not ours. Hence, our function, at least at the outset, is one of review only: review to determine if, in light of suchcriteria, the judge abused his or her discretion.

Did the judge err in principle, disregard a material matter of fact, or fail to act judicially?Only if some such failing is present are we free to override the decision of the judge and do as we think fit. Either that, or the result mustbe so plainly wrong as to amount to an injustice and invite intervention on that basis. (See, for example, McKinnon Industries Ltd. v.Walker, (UK JCPC), [1951] 3 D.L.R. 577, at 579 (P.C.) and Saskatchewan Power Corporation v. John Doe, (SK CA), [1988] 6 W.W.R. 634 (Sask.C.A.)). [10] I have concluded that Mr. Knudsen’s application for leave must be dismissed. In my view, Mr.

Knudsen will have an uphill battlearguing that the Chambers judge erred by ordering a Voices of the Child report. It is without dispute that, generally speaking, a Voicesreport can assist courts in assessing how a parenting arrangement should be crafted. In the specifics of this case, the Chambers judgedetermined that such a report was warranted.

The reason given by the Chambers judge for the order was that, in the face of anapplication for variation and in the presence of conflicting affidavit evidence, it was necessary for the report to be done so the courtcould properly assess the view of the child in this case. [11] Mr. Knudsen’s arguments on the application for leave to appeal are essentially the arguments which he made before the Chambersjudge as to why the report should not be ordered.

His arguments in his notice of appeal that there should have been material changedemonstrated before the Chambers judge could order a Voices report puts the cart before the horse and, in my view, prima facie isdestined to fail. The issue of whether there is a material change is yet to be determined. The Chambers judge took into consideration theprevious Voices reports already done including the one report done two years ago and exercised his discretion to order another one inwhat appears to be the best interests of the child. Mr.

Knudsen seeks to overturn a discretionary order, the result of which, at least in theabstract, would be of some benefit to the Court. [12] Given the high standard of review, it is questionable whether Mr. Knudsen would succeed on appeal. Accordingly, Mr. Knudsenhas failed to satisfy me that the proposed appeal has sufficient merit within the meaning of the Rothmans test. Additionally, there doesnot appear to be issues of sufficient importance to the state of the law and the administration of justice to warrant leave being granted. The application of Mr. Knudsen for leave to appeal is dismissed.

In the circumstances, there will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 3rd day of July, A.D. 2013. “Ottenbreit J.A.” Ottenbreit J.A.