Docket: CACV2578 Denise Theresa Fehr Respondent (Prospective Appellant) - v. -, 2014 SKCA 91

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 91 Date: 2014-08-26 Between: Docket: CACV2578 Denise Theresa Fehr Respondent (Prospective Appellant) - and - Julius Andrew Turta Applicant (Prospective Respondent) Before: Whitmore J.A. in Chambers Counsel: Cara Haaf for the prospective appellant Bonnie Reddekopp for the prospective respondent Application: From: FLD No. 224 of 2014 , J.C. of Saskatoon Heard: August 21, 2014 Disposition: Stay of execution lifted

Written Reasons: August 26, 2014 By: The Honourable Mr. Justice Whitmore Whitmore J.A. I. Introduction [ 1 ] The applicant, Julius Turta, applies to lift the stay of execution that, pursuant to Rule 15(1) of the Court of Appeal Rules , automatically follows upon the filing of a notice of appeal. [ 2 ] Mr. Turta applied to the Court of Queen’s Bench for an order of exclusive possession of the family home. Ms. Fehr also requested an order granting her exclusive possession of the home.

On July 30, 2014 the Chamber judge issued an order granting the applicant exclusive possession of the home and its contents. [ 3 ] The applicant, in addition to requesting the stay be lifted, submits that the respondent, Denise Fehr, requires leave to appeal the interim order of the Chamber judge, which she has not done. For this reason, as well, the applicant submits the stay should be lifted. [ 4 ] I am of the view that leave is not required to appeal the decision of the Chamber judge. I am also of the view that the stay should be lifted. My reasons follow. II.

Analysis [ 5 ] With respect to the question of whether leave is required, s. s. 7(2) and 7(3) of the Court of Appeal Act, 2000 , S.S. 2000, c. C-42.1 reads as follows: Right of appeal 7(1) In this

section and

section 9, “enactment” means: (

a) an Act; (

b) an Act of the Parliament of Canada; or (

c) a regulation made pursuant to

an Act or

an Act of the Parliament of Canada; but does not include this Act.

(2) Subject to subsection (3) and

section 8, an appeal lies to the court from a decision: (

a) of the Court of Queen’s Bench or a judge of that court; and (

b) of any other court or tribunal where a right of appeal to the court is conferred by an enactment.

(3) If an enactment provides that there is no appeal from a decision mentioned in subsection (2) or confers only a limited right of appeal, that enactment prevails. [ 6 ]

Section 8 of The Court of Appeal Act reads as follows: Interlocutory appeals 8(1) Subject to subsection (2), no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unless leave to appeal is granted by a judge or the court.

(2) Leave to appeal an interlocutory decision is not required in the following cases: (

a) cases involving: (

i) the liberty of an individual; (ii) the custody of a minor; (iii) the granting or refusal of an injunction; or (iv) the appointment of a receiver; (

b) other cases, prescribed in the rules of court, that are in the nature of decisions. [ 7 ]

Section 55 of The Family Property Act , S.S. 1997, c. F-6.3 reads as follows:

Appeal 55 An appeal lies to the Court of Appeal for Saskatchewan from any order or judgment made or given on or pursuant to anapplication pursuant to this Act. [8] In Rimmer v. Adshead, 2003 SKCA 19, 232 Sask. R. 68, the Court dealt with an appeal of a Chamber judge’s dismissal of anapplication to grant an order requiring one party to answer questions on an examination for discovery.

In dealing with the right of appeal,Jackson J.A. considered the right of appeal contained in s. 55 of The Family Property Act, s. 21 of The Divorce Act, R.S.C. 1985, c. 3(2nd Supp.), and s.s. 7(2) and 7(3) of The Court of Appeal Act and stated the following: [3] The significance of the question is this. If the right of appeal is grounded in The Court of Appeal Act, 2000, subsection 8(1) ofthat Act comes into play.

It states that “no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unlessleave to appeal is granted by a judge or the court.” If the right of appeal is derived from The Family Property Act or the Divorce Act, anappeal, whether interlocutory or final, may be made as of right because the governing statute may take precedence over subsection 7(2)of The Court of Appeal Act, 2000 by virtue of subsection 7(3) of that Act. [4] There has been some debate about the meaning to be attributed to statutes which grant a right of appeal with respect to “ordersmade under or pursuant to” the statute in question.

The Supreme Court of Canada considered this issue in the context of

section 249 ofthe

Canada Business Corporations Act in Kelvin Energy Ltd. v. Lee. In Kelvin, the Court held that language of this nature means anyjudgment, whether interlocutory or final, is appealable as of right, but only if it has been made pursuant to a power expressly conferred bythe

Canada Business Corporations Act. The Court went on in the same paragraph to refer to the scope of

section 21 of the Divorce Actnot having been definitely settled and left that question open for another day [footnotes omitted]. [9]

Section 55 of The Family Property Act contains similar wording to s. 21 of The Divorce Act. Jackson J.A. explained thesignificance of the words “orders made under or pursuant to” the statute in question at para. 6: [6] The words in question “order or decision made pursuant to this Act” in the Divorce Act and The Family Property Act can bear themeaning attributed to the same words in Kelvin, i.e., as granting a right of appeal, as of right, for orders and decisions made pursuant to apower expressly conferred by the Act in question.

It does some harm to the words to speak of a procedural order, like the one before us,as having been made pursuant to the Divorce Act or The Family Maintenance Act, 1997. Jackson J.A. then went on to state the following: [8] For these reasons, we conclude that the right of appeal in the Divorce Act and The Family Property Act is limited to thosejudgments or orders arising from a power specifically conferred by those statutes, to the exclusion of the variety of interlocutorydecisions which may be made under the Rules of Court.

Accordingly, this appeal finds its authority in The Court of Appeal Act, 2000. [10] Thus, to be appealable as of right under s. 55 of The Family Property Act, an interlocutory order must be made under the authoritycontained in The Family Property Act; the order cannot also be based on the authority derived from The Queen’s Bench Rules. [11] This makes sense. If s. 55 of The Family Property Act does not grant a right of appeal of interlocutory decisions, then it ismeaningless.

Final decisions are appealable as of right under s. 2 of The Court of Appeal Act and it would thus be redundant to restricts. 55 of The Family Property Act to final orders. [12] As Jackson J.A. said at para. 7 of Rimmer v. Adshead: [t]here are also good policy reasons to limit the right of appeal in this manner. Interlocutory appeals in family law matters, where delaycan least be borne, can be used as an instrument of delay.

These policy concerns would support limiting the right of appeal by the meanschosen in The Court of Appeal Act, 2000. [13] I conclude, therefore, that leave is not required under these circumstances as there is no corresponding right to appeal contained inThe Queen’s Bench Rules. I now turn to the question of whether leave should be granted. [14] The general objectives in stay applications are set out in Gerski v. Gerski, 2006 SKCA 66 at para. 11, 285 Sask. R. 121: 11 The principles to be applied in adjudicating an application to lift a stay are well settled.

The underlying objective is to preventinjustice and to ensure that the result is as fair and equitable as possible for all sides. As stated by Lane J.A. in Ochapowace First Nationv. Araya and Shepherd (1994), (SK CA), 123 Sask. R. 311 (C.A.) at para. 11, “[t]he purpose [of lifting a stay] is tominimize prejudice pending the appeal and to balance the competing interests of the respondent who has been successful against those ofan appellant who ought not to be prejudiced simply by appealing.” [15] The order of the Chambers judge is a discretionary order.

The standard of review of discretionary orders is that of deference.(G.L. v. Canada (Attorney General), 2004 SKCA 137, [2005] 3 W.W.R. 445) “Only if the chambers judge abused his discretion byacting on some wrong principle, by disregarding some material matter of fact, or by failing to act judicially, is the Court of Appeal atliberty to interfere. Either that or the result must be so plainly wrong as to invite intervention on that basis: Rimmer v.

Adshead, 2002SKCA 12 , [2002] 4 W.W.R. 119.” Whether or not to lift the stay must be considered in light of this standard. [16] The Chamber judge considered s.s. 4, 5, 6, and 7 of The Family Property Act and the relevant factors to be considered in such anapplication, as summarized by Ryan-Froslie J. (as she then was) in Poitras v. Poitras, 2009 SKQB 196, [2009] 7 W.W.R. 311. [17] The Chamber judge considered that the applicant was unable to work. The applicant’s health is considerably worse than that ofthe respondent, Ms.

Fehr. [18] The respondent had made a significant gift of family assets and was more easily able to find a suitable, alternate

accommodation. [ 19 ] The Chamber judge took into account the fact that the respondent had damaged the family home in previous altercations with the applicant and also considered that the appellant would be more motivated to maintain the home in the interim as he had invested considerably more into the family home than the respondent. [ 20 ] The Chamber judge determined that the breakdown of the relationship between the parties and their current circumstances required that an order be made. Indeed, both parties had sought such an order.

To decline to lift the stay would therefore prejudice both parties and leave them in an intolerable situation where conflict will continue. This is not desirable. [ 21 ] Further, with a deferential standard of review as stated above, it is more likely than not that this Court will not intervene. The stay of execution is therefore lifted.

The appellant Denise Fehr shall vacate the premises by 12:00 noon on September 5, 2014. [ 22 ] The best that can be done under these circumstances is to expedite these proceedings so the appeal can be heard as quickly as possible. [ 23 ] It is therefore ordered that the appellant, Denise Fehr, serve and file her appeal book and factum before September 30th, 2014. If she fails to do so, the applicant, Julius Turta, may on five days notice move to strike the appeal for want of prosecution. [ 24 ] Costs will be in the cause.

DATED at the City of Regina, in the Province of Saskatchewan, this 26th day of August, 2014 . “Whitmore J.A.” Whitmore J.A.