Gebert v Wilson, 2015 SKCA 139

Court of Appeal for Saskatchewan Docket: CACV2761 Citation: Gebert v Wilson , 2015 SKCA 139 Date: 2015-10-27 Between: Jordana Rae-Anne Gebert Appellant And Eric Robert Wilson Respondent Before: Jackson, Ottenbreit and Ryan-Froslie JJ.A. Disposition: Appeal dismissed (orally) Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit On Appeal From: FLD 218 of 2015, J.C. of Saskatoon Heard: October 27, 2015 Counsel: Beau Atkins for the Appellant Timothy Turple for the Respondent Ryan-Froslie J.A. I. Introduction [ 1 ] Ms.

Gebert appealed an interim order granted in Queen’s Bench Chambers which provided Mr. Wilson with specified access to their four-and-a-half-year-old daughter. The appeal was dismissed by oral judgment with written reasons to follow. These are those reasons. II. background [ 2 ] Ms. Gebert and Mr. Wilson, who were never married, had one daughter of their relationship, Braelynn, who was born on October 24, 2010. They cohabited after Braelynn’s birth and while they separated in the spring of 2014, they continued to live under the same roof until the end of October/beginning of November of that year when Ms.

Gebert moved from the home with Braelynn. Since then, Braelynn’s primary residence has been with her mother, while Mr. Wilson has had access on alternating weekends from Friday evening to Sunday evening and for one hour every Tuesday. Ms. Gebert attests this arrangement was established by verbal agreement of the parties, while Mr. Wilson asserts it was an arrangement unilaterally imposed upon him by Ms. Gebert and that he has consistently and unsuccessfully sought more time with his daughter. [ 3 ] During their relationship, Mr.

Wilson worked Monday to Friday from 7 a.m. to 5:30 p.m. as a heavy-equipment operator. Prior to the rendering of the order in issue, Mr. Wilson was laid off his employment and remained unemployed as of the hearing of the appeal. During their relationship, Ms. Gebert also worked full-time. At the time of the separation she was working Monday to Friday from 8 a.m. to 4 p.m. as an administrative assistant and, in addition, worked some weekends as a coat check girl at a nightclub (7 p.m. to 3 a.m.).

Braelynn attends daycare when her mother is at work or is cared for by her maternal grandparents or maternal great- grandparents. [ 4 ] In his affidavit, Mr. Wilson attests he has a “close loving bond” with Braelynn and that prior to the parties’ separation, he interacted with her on a daily basis—preparing meals, bathing her, reading to her and taking her to the park. In her materials, Ms. Gebert does not deny these assertions, though she attests she has always been Braelynn’s primary caregiver. [ 5 ] The evidence discloses that both Ms. Gebert and Mr.

Wilson have established appropriate home environments for Braelynn, and that Braelynn has important relationships with extended family on both sides, including Braelynn’s half-sister Callie (Mr. Wilson’s daughter from another relationship). Ms. Gebert acknowledges it is important that Braelynn’s relationship with Callie be fostered and accommodated. Mr. Wilson has entered into a new relationship and his girlfriend has a son with whom Braelynn is familiar. Both Ms. Gebert and Mr.

Wilson allege the other is manipulative and verbally abusive, though there is no suggestion Braelynn is at risk in the care of either of them. Braelynn was involved in a number of extracurricular activities at the time of the application and was attending pre-kindergarten. Ms. Gebert asserts that Braelynn has some special health needs which require ongoing periodic cranial massage therapy, physiotherapy and chiropractic treatments. [ 6 ] In July 2015 (approximately 9.5 months after Ms. Gebert moved out with Braelynn), Mr. Wilson brought an application for specified “parenting time” with his daughter. Ms.

Gebert opposed the application arguing the status quo should not be changed on an interim basis. In rendering his decision, the Chambers judge made no mention of custody or primary residence. He provided Mr. Wilson with interim parenting time commencing October 12, 2015, as follows: Week one: Wednesday at 6:45 a.m. to Sunday at 6:45 p.m., and

Week two: Tuesday from 6:45 a.m. to 6:45 p.m. The Chambers judge did not provide any reasons for making the access order that he did. [7] Ms. Gebert now appeals that interim order, arguing that the Chambers judge erred in law (

i) by varying the status quo; (ii)by failing to provide reasons for his decision; and (iii) by failing to consider the best interests of the child. III. analysis A.

Varying the Status Quo [8] As stated by Caldwell J.A. of this Court in Bolan v Bolan, 2013 SKCA 84 at para 9, 417 Sask R 265 [Bolan], “the standardof appellate review in appeals from interim custody orders presents a significant hurdle for an appellant to clear.” This is so because ofthe high degree of deference accorded to judges making such orders and the long-standing position of this Court that appeals frominterim custody and access orders should be discouraged.

Interim orders are temporary in nature, and are only meant to cover a finiteperiod of time until the issues can be resolved either through agreement or by judgment following trial. In addition, such orders are basedon limited and often controverted evidence (see Graham v Tomlinson, 2010 SKCA 101 at para 15, 324 DLR (4th) 156; Mantyka vDueck, 2012 SKCA 109 at para 47, 399 Sask R 303; Jochems v Jochems, 2013 SKCA 53 at para 24, 414 Sask R 201; and Bolan at para10). [9] While counsel for Ms.

Gebert recognizes the hurdle he must overcome on this appeal, he asserts, relying on Guenther vGuenther (1999), (SK KB), 181 Sask R 83 (QB) [Guenther] that the Chambers judge erred by failing to maintain thestatus quo established since the separation.

At the heart of this argument is the principle enunciated in Guenther which reads as follows: [5] What this application ignores and there have been others recently, is the consistent case law which states the courts should not varyinterim custody arrangements whether legal or de facto in the absence of evidence that the child or children are in some way at risk, orother compelling reason…. [10] Based on Guenther, counsel for Ms.

Gebert contends the Chambers judge, on an interim basis, should not have changed theparenting arrangement that was in effect since at least October or November 2014 unless the evidence established some “risk” toBraelynn. In our view, this represents a misinterpretation of that case and an inappropriate recitation and application of the principleexpressed therein.

An explanation is in order. [11] First, the principle expressed in Guenther does not displace the legislative requirement enunciated in both the Divorce Act,RSC 1985, c 3 and The Children’s Law Act, 1997, SS 1997, c C-8.2 that in making decisions with respect to parenting arrangements, theparamount consideration is the best interests of the child. In our view, the principle itself is rooted in that paramount consideration.

Itrecognizes that changes in custody and primary residence have a profound effect on children—altering their day to day homeenvironment, their routine, their contact with important people in their lives including caregivers, siblings, extended family and friendsand may result in a change of school and activities—and thus, generally should not occur on an interim or temporary basis as a finalresolution may result in such a change being reversed with all of the same attendant disruptions to the child. [12] Second, the principle applies generally to changes in custody and primary residence, as opposed to changes in access.

InGuenther, while Laing J. refused to change the child’s custody on an interim basis in the face of the parent’s written agreement, he didincrease the mother’s parenting time with the child. Usually, changes in access will not have the same profound effect on a child aschanges in custody or primary residence. [13] Third, the principle recognizes that the status quo may be changed on an interim basis if there is a compelling reason to do so,or if the child is at risk. That is how this Court interpreted Guenther in the recent case of Napper-Whiting v Whiting, 2014 SKCA 33, 433Sask R 235.

That case involved the appeal of an interim order which changed primary residence of a child from the mother to the father.Herauf J.A. speaking for this Court quoted with approval para. 5 of Guenther, and then stated the following in reference to thatparagraph: [4] We wish to reiterate that this is the appropriate test for applications of this nature.

In this particular appeal we find that the Chambersjudge failed to find that the child was “in some way at risk, or other compelling reason….” [Emphasis added] In short, risk to the child is not the only reason for varying the status quo on an interim basis. [14] Finally, we feel it is necessary to comment on what constitutes the status quo for the purpose of applying the principle. Thestatus quo to which the principle applies, is not one of short duration, nor is it the situation which arises immediately following theseparation of parents.

Separation of necessity requires a transitional period where a child’s parenting arrangements will be in flux. Forseparating parents, generally speaking, the status quo relied on by judges in determining interim applications for custody and access, isthat which existed during the parent’s relationship, not what was created as an immediate response to the separation. An inevitableconsequence of separation is that one parent is often left without a home and must obtain new accommodation suitable to meet the needsof their children.

Moreover, in the period immediately following separation, one or both parents are often focused on reconciliation asopposed to what the ongoing parenting arrangements should be. Once it is recognized the separation will be long-term, parents turn theirminds to questions of custody and access. It is important that parents are able to pursue the goals of reconciliation and parentingagreements without fear that their failure to immediately commence a court application to determine parenting issues will prejudice theirposition because a new status quo is created.

We recognize that the effluxion of time may eventually result in the establishment of a newstatus quo. That, however, is a question of fact for determination of the Chambers judge, taking into account among other things, thelength of time that has passed since the separation, the reasons for the delay in bringing the application, and how the parenting regime

was established (e.g. by agreement, unilateral action of one party, necessity, etc.). All of this must be considered against the backdrop ofwhat is in the best interest of the child, including the relationship that the child enjoyed with both parents prior to the separation. [15] In our view, the principle enunciated in Guenther does not apply to the case under appeal. Mr. Wilson’s application was for aninterim order “directing appropriate parenting time.” He was not seeking custody or that his home become his daughter’s primaryresidence.

In short, his application was a request for specified access, in the face of what he alleged was a unilateral parenting regimeinstituted by Ms. Gebert. Moreover, the time between Ms. Gebert’s move from the home and the court application was just over ninemonths, during which period Mr. Wilson attests he was attempting to obtain more access. Braelynn is of an age where she knows both ofher parents and is attached to both of them. The status quo during the parties’ relationship was that of two involved parents.

In thecircumstance, that was the status quo relevant to the Chambers judge’s determination of the access issue. B. Judge’s Failure to Give Reasons [16] The Supreme Court of Canada has been very clear with respect to a judge’s obligation to provide reasons for his or herdecisions and an appellate court’s role in reviewing a decision where one of the grounds of appeal is the adequacy of reasons.

Theleading authority on the adequacy of reasons is the Supreme Court of Canada’s decision in R v Sheppard, 2002 SCC 26, [2002] 1 SCR869 at para 55(8) [Sheppard], which held that the question to be answered by an appellate court dealing with this issue, is whether thedecision “is reasonably intelligible to the parties and provides the basis for meaningful appellate review….” [17] In R v Walker, 2008 SCC 34, [2008] 2 SCR 245 [Walker], Binnie J. summarized the policies underpinning a judge’s need togive reasons for his or her decision, namely: to justify and explain the result; to tell the losing party why he or she lost; so that informedconsideration can be given to grounds of appeal; and, to satisfy the public that justice has been done. [18] While Sheppard and Walker are criminal cases, the law with respect to the adequacy of reasons has been applied in the civillaw context, including custody and access matters: e.g.

Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 atparas 100–102, [2007] 3 SCR 129; F.H. v McDougall, 2008 SCC 53 at paras 98–99, [2008] 3 SCR 41; Young v Young (2003), (ON CA), 223 DLR (4th) 113 (Ont CA) at para 27; B.C. v M.S., 2015 NBCA 46 at para 19, 438 NBR (2d) 155; Petrowski vWaskul, 2003 MBCA 65 at para 12, [2003] 10 WWR 65; and Rockall v Rockall, 2010 ABCA 278 at paras 26–27, 490 AR 135. [19] McLachlin C.J. speaking for the Supreme Court of Canada in Hill, indicated the test to be applied when determining theadequacy of reasons is a functional one.

At para. 101 she stated: 101 In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court. Where therecord discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable. This means that lessdetailed reasons may be required in cases with an extensive evidentiary record, such as the current appeal.

On the other hand, reasons areparticularly important when “a trial judge is called upon to address troublesome issues of unsettled law, or to resolve confused andcontradictory evidence on a key issue”, as was the case in the decision below: Sheppard, at para. 55. In assessing the adequacy ofreasons, it must be remembered that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court dida poor job of expressing itself”: Sheppard, at para. 26. [20] In this case, the Chambers judge provided no reasons for allotting Mr. Wilson the parenting time he did.

Reasons werenecessary so that the parents could understand why the decision was made and allow appellate review. This Court recognizes that judgesare presumed to know the law and, in particular in the context of this case, that the best interests of the child is the predominantconsideration when determining custody and access.

We also recognize the decision in this case was rendered in Chambers wherenumerous cases are being dealt with on the same day, and where the time constraints and the issues involved render lengthy decisionsneither practical nor warranted (see Willick v Willick, (SCC), [1994] 3 SCR 670 at 746). Nevertheless, the Chambersjudge should have briefly set out, in a line or two, the rationale for his decision. [21] Having said that, the absence of reasons for the Chambers judge’s decision is not a basis for allowing this appeal.

This isbecause it is nonetheless possible from the record to determine that the order under review was in Braelynn’s best interests. C. Best Interests of the Child [22] The evidence presented on the application establishes that prior to the separation, both Ms. Gebert and Mr. Wilson workedoutside the home and both provided care for Braelynn, though the extent of Mr. Wilson’s involvement is in dispute. There was noevidence of any concerns with respect to Mr. Wilson’s ability to parent Braelynn.

He has provided an appropriate home environment andit is uncontroverted that he has a close and loving relationship with his daughter. Braelynn also has a close and loving relationship withher mother and others, including Mr. Wilson’s daughter, Callie. Mr. Wilson is currently unemployed and has the ability to spend timewith Braelynn during the periods ordered by the Chambers judge. He attests that if he obtains employment, he would utilize the samechildcare provider as that used by Ms. Gebert. All other things being equal, Braelynn spending time with her father is preferable to herbeing in childcare.

The periods of parenting time ordered by the Chambers judge are not excessive and will enable Braelynn to maintainher close and loving relationship with her father while, at the same time, allowing Mr. Wilson to be involved in her school andextracurricular activities, all of which is important to Braelynn. In short, even though the Chambers judge offered no reasons for hisdecision, it is in accord with Braelynn’s best interests, and this Court is not prepared to interfere with it. IV. conclusion [23] For these reasons, the appeal was dismissed on the day it was heard and Ms. Gebert was ordered to pay Mr.

Wilson the costsof this appeal, fixed at $1000.00.