Dickinson v Joyes, 2015 SKCA 133

Court of Appeal for Saskatchewan Citation: Dickinson v Joyes, 2015 SKCA 133Docket: CACV2794 Date: 2015-12-02Robert Lee-Scott DickinsonandJaime Lynnae Joyes Fiat [1] The applicant father seeks leave to appeal an interim order changing the school the parties’ children are to attend. Thechildren are ten and eight years of age. At the time of the interim order hereinafter referred to, the parties were living in British Columbiabut both were anticipating a move back to Saskatchewan. The parties had agreed, after mediation, the children would be registered atSouth Corman Park School outside the city of Saskatoon.

That particular school was agreed to because it was convenient for both parties,the children had access to extracurricular facilities in Saskatoon and it satisfied the applicant’s concern the respondent mother intended toplace the children in the Outlook School making it more difficult for him to have access and participate in the children’s activities.

Theparties also set out other terms agreed to by them and provided inter alia that the British Columbia order was to be interim andreviewable by a court of competent jurisdiction after the children finished their school term. [2] The respondent is the primary caregiver and living with a new partner with whom she has a younger child and is expecting asecond child. She expresses difficulty transporting the school-aged children to the agreed-upon school and wishes to transfer them to theOutlook School because free bussing is available.

The applicant has moved to Saskatoon and rented a house only a ten-minute drive fromSouth Corman Park School. He works seven days every two weeks in Saskatoon and seven days every two weeks in Calgary. [3] The applicant sees the respondent’s effort to change the children’s school as a further attempt by the respondent tomarginalize him from his children. The Outlook School is considerably further from him and he will be less involved in some of theirregular activities, which is not the case if the children remain in South Corman Park School.

Indeed, the Chambers judge did accept theapplicant’s argument that changing schools would impact negatively on the applicant’s time with his children. The Chambers judge alsonoted the possibility the respondent may have made the agreement in British Columbia only to gain a tactical advantage, which wouldthen allow her to alter the arrangements once in Saskatchewan.

The applicant argues the respondent is being rewarded for her efforts bythe order changing schools. [4] The parties have scheduled the pre-trial conference preceding a trial on the issues for February 17, 2016. [5] The test for the granting of leave has been oft stated and is set out in Rothmans, Benson & Hedges Inc. v Saskatchewan, 2002SKCA 119 at para 6, 227 Sask R 121: [6] The power to grant leave has been taken to be a discretionary power exercisable upon a set of criteria which, on balance, must beshown by the applicant to weigh decisively in favour of leave being granted: Steier v.

University Hospital, (SK CA),[1988] 4 W.W.R. 303 (Sask. C.A., per Tallis J.A. in chambers). The governing criteria may be reduced to two—each of which features asubset of considerations—provided it be understood that they constitute conventional considerations rather than fixed rules, that they arecase sensitive, and that their point by point reduction is not exhaustive.

Generally, leave is granted or withheld on considerations of meritand importance, as follows: First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? • Is it prima facie frivolous or vexatious? • 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, for instance,or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? • Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? • Is it apt to add unduly or disproportionately to the cost of the proceedings?

Second: Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of thelaw, or to the administration of justice generally, to warrant determination by the Court of Appeal? • does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? • does it raise a new or controversial or unusual issue of practice? • does it raise a new or uncertain or unsettled point of law? • does it transcend the particular in its implications? (Emphasis in original) [6] The Court has stated strongly its reluctance to interfere with interim custody and access orders (see, for example, Jones vBahr, 2010 SKCA 41, 346 Sask R 284; Foss v Foss (1991), (SK CA), 31 RFL (3d) 367 (Sask CA); Rimmer vAdshead, 2003 SKCA 19, 224 DLR (4th) 372).

The applicant raises serious issues but I am concerned an appeal could unduly delayproceedings. An appeal could result in the pre-trial settlement conference scheduled for February 17, 2016 being adjourned. This mattermust proceed as expeditiously as possible. The applicant can raise his concerns about marginalization at trial which should be held assoon as practicable. I note the Chambers judge viewed the change of schools as being in the children’s interests the “short term”. If thematter proceeds expeditiously, the issue could be resolved before a new school year begins in the fall of 2016.

[ 7 ] The application for leave to appeal is dismissed. The following condition is imposed: the pre-trial settlement conference will not be adjourned unless by consent or for some emergent circumstance. There is no order as to costs. “Lane J.A.” Lane J.A. Counsel: Lana Wickstrom for Robert Lee-Scott Dickinson Peter Kazman for Jaime Lynnae Joyes