McCorriston v Hunter, 2019 SKCA 106

Court of Appeal for Saskatchewan Docket: CACV3349 Citation: McCorriston v Hunter , 2019 SKCA 106 Date: 2019-10-17 Between: Jeffrey Bruce McCorriston Appellant (Respondent) And Heather Dawn Hunter Respondent (Petitioner) Before: Richards C.J.S., Whitmore and Leurer JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Whitmore On Appeal From: 2018 SKQB 335 , Melfort Appeal Heard: September 6, 2019 Counsel: Trent Forsyth for the Appellant Darcy Neufeld for the Respondent Leurer J.A. I.

Introduction [ 1 ] Jeffrey Bruce McCorriston appeals a decision made by a Queen’s Bench judge in Chambers in favour of the respondent, Heather Dawn Hunter: H.D.H. v J.B.M. , 2018 SKQB 335 [ Chambers Decision ]. [ 2 ] The Chambers Decision resolved issues of parenting and child support existing in the context of a long-running family law dispute. The issue on appeal is whether the judgment and order should have been granted on a

summary basis in the circumstances of this case. [ 3 ] For the reasons that follow, I would allow Mr. McCorriston’s appeal. II. Background A. The Dispute and Procedural History [ 4 ] Mr. McCorriston and Ms. Hunter were married in 2002. They have three children, all still under the age of majority. The parties separated on March 1, 2013. Since separation, the children have lived with Ms. Hunter. [ 5 ] Ms.

Hunter issued a petition on March 8, 2013, claiming divorce, exclusive possession of the family home and contents, guardianship over the children’s property, sole custody of the children, and child support in accordance with the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ]. [ 6 ] A history of contentious proceedings followed the issuance of the petition. Most relevant to this appeal are the following milestones: (

a) March 15, 2013: On ex parte application by Ms. Hunter, a temporary order was made giving Ms. Hunter exclusive possession of the family home and household goods and directing that primary residence of the children be with Ms. Hunter. The order also directed that Mr. McCorriston not attend the family home and limited the parties to communicating by text or email. (

b) April 1, 2013: On application by Ms. Hunter, an order was made: (

i) giving Ms. Hunter interim custody and primary residence of the children; (ii) granting Mr. McCorriston specified, restricted access to the children and the “right to apply for more access”; (iii) giving Ms. Hunter continued exclusive possession of the family home and household contents, with the exception of Mr. McCorriston’s personal belongings; (iv) restraining Mr. McCorriston from withdrawing monies from the children’s bank accounts; and (

v) restraining Mr. McCorriston from communicating with Ms. Hunter, provided, however, that he was to be “at liberty to phone the family home for the purpose of speaking to the children”. (

c) November 22, 2013: Arising from cross-applications made by the parties:

(

i) Ms. Hunter was granted authorization to travel with the children to Mexico during a specified period of time; (ii) Mr. McCorriston was ordered to pay child support to Ms. Hunter in accordance with the Guidelines in the amount of $1,121 per month, based on an annual income of $68,000, with directions respecting further financial disclosure and a future review of the support amount; (iii) a detailed parenting arrangement was ordered. Most material to issues in this appeal,

(1) Mr. McCorriston was to have parenting time with the children every second week from Wednesday afternoon until the following Monday morning,

(2) Ms. Hunter was to have the first right to care for the children in the event Mr. McCorriston was not available, and

(3) Mr. McCorriston was not to consume alcohol before or during his parenting time; and (iv) Mr. McCorriston was to return an amount taken from one of the children’s accounts and all accounts were turned over to the family registered education plan. (

d) April 28, 2014: On application by Ms. Hunter, an order was made directing an expedited pre-trial conference. (

e) May 29, 2014: Two orders were made. First, by consent, the parties were granted a divorce. Second, on application by Ms. Hunter, Mr. McCorriston was found to be in contempt of court for having consumed alcohol while the children were in his care. The request of Ms. Hunter for a suspension of Mr. McCorriston’s parenting time was dismissed. (

f) October 23, 2014: On application by Ms. Hunter, an order was made, (1) allowing the RCMP to attend at any residence or building to obtain the children should the RCMP “reasonably believe that Mr. McCorriston has consumed alcohol while the children are in his care, or within a 24 hour period prior to Mr. McCorriston having the children in his care”, and (2) directing Mr. McCorriston to undergo an alcohol addiction assessment and not to drive any vehicle with the children unless it was equipped with an alcohol-detection interlock device. (g) 2016: On January 26, an order was made granting Mr.

McCorriston leave to file a counter-petition to advance a claim for equal division of family property, including the family home. In November, a judgment of this Court ( Hunter v McCorriston , 2016 SKCA 144 , 86 RFL (7th) 260) allowed Ms. Hunter’s appeal from this order, with the result that Mr. McCorriston’s request for leave to file a counter-petition was dismissed. The matter was remitted back to the Court of Queen’s Bench for continuation of the pre-trial conference or trial on the outstanding issues between the parties. (

h) August 14, 2018: Ms. Hunter served her application for

summary judgment pursuant to Rule 7-2 of The Queen’s Bench Rules . Her notice of application sought the following orders: (

i) the parties have joint custody of the children, with primary residence remaining with Ms. Hunter; (ii) “[r]easonable access upon reasonable notice for [Mr. McCorriston]; transitional in nature and with conditions”; and (iii) for ongoing child support in accordance with the Guidelines “based on [Mr. McCorriston’s] annual income as reflected on his filed tax return, or based on an income of not less than $55,000 per year” and that Mr. McCorriston “equally contribute to

section 7 expenses relating to the children on an ongoing fashion of $235 per month”. [ 7 ] Mr. McCorriston opposed Ms. Hunter’s request for

summary judgment, arguing that a trial was required to deal with issues of parental alienation and to determine issues of child support. Affidavits and financial statements were filed by both parties to supplement the material already on the Court of Queen’s Bench file. Neither side requested leave to cross-examine the affiants. I will return to some of the detail of the evidence given in these affidavits later in this judgment. For the moment, it is helpful to know that the affidavits revealed, and it was agreed by the parties, that Mr.

McCorriston had not parented the children since December 31, 2016 and had not had any contact with them since May 19, 2017. The parties offered very different reasons for this state of affairs. B. The Chambers Decision [ 8 ] The Chambers judge framed three questions. The first asked whether Ms. Hunter was “entitled to

summary judgment and does the court have the ability to grant the same on some or all of the claims?”. The second and third questions assumed that

summary judgment was available and asked, “what is the appropriate custody and access arrangement?” and “what is the appropriate amount of child support and s. 7 expenses” under the Guidelines ? [ 9 ] In respect to the first issue (availability of

summary judgment), the Chambers judge concluded that “the court may determine a family law issue on a

summary judgment application where there is no genuine issue requiring trial” (at para 12). He then held that “there is sufficiently clear and uncontroverted relevant evidence that the court may proceed with a determination of the issues before it” (at para 16). [ 10 ] With respect to the second issue (parenting), the Chambers judge stated “[b]ased upon the extensive volume of affidavit evidence”, he was “comfortable with maintaining the current parenting structure … with primary residence with the mother and prescribed conditional time with the father” (at para 30).

He found it to be “apparent that there is to some degree, although not extremely significant, a degree of parental alienation by the mother of the father” (at para 31). He concluded that this was “fueled over the years with the father’s lifestyle after separation” (at para 32). The Chambers judge listed nine specific categories of conduct on the part of Mr. McCorriston that contributed to the parental alienation. The specific parenting order made by the Chambers judge directed that the parties have joint custody of the children “with primary residence and day to day decision making” with Ms. Hunter.

In addition, Mr. McCorriston was to have “prescribed conditional access to the children”. In particular, Ms. Hunter was ordered to (

a) ensure the children arrange at least one phone or Facetime call per week, in addition to contact on birthdays or other special holidays, with Mr. McCorriston, (

b) ensure the children each provide Mr. McCorriston with a monthly email indicating their extracurricular activities and the dates, times, and places in order that he may attend, and (

c) encourage the children to go out for supper with Mr. McCorriston (if invited) at least once per month.

[ 11 ] With respect to the third issue (child support), Mr. McCorriston’s annual income was estimated to be $38,000, and as such Mr. McCorriston was ordered to pay s. 3 child support in the amount of $736 per month. Mr. McCorriston was also ordered to pay s. 7 expenses in the amount of $250 per month. If he made these payments “on time for the next 12 consecutive months, any claim [by Ms. Hunter] for

section 7 arrears shall be waived” by Ms. Hunter. If Mr. McCorriston did not make these payments on time, Ms. Hunter could “return the matter to court for determination of

section 7 arrears”. The amount of child support was to be subject to adjustment pursuant to The Family Maintenance Act, 1997 , SS 1997, c F-6.2 . C. Parties’ Positions [ 12 ] Mr. McCorriston takes the position that it was inappropriate for the Chambers judge to determine any issues summarily and that a trial is required in connection with all matters. [ 13 ] Ms. Hunter takes the position that the Chambers judge committed no errors in his analysis, and certainly none that justify intervention by this Court. As such, Ms.

Hunter says that the final judgment dealing with parenting issues and the order dealing with support issues should stand. III. Issues [ 14 ] Mr. McCorriston’s appeal raises three issues: (

a) Is

summary judgment available to resolve issues of parenting and child support? (

b) Did the Chambers judge err in granting judgment with respect to issues of parenting on a

summary basis? (

c) Did the Chambers judge err in granting the child support order on a

summary basis? IV. Analysis A. Is

summary judgment available to resolve issues of parenting and child support? [ 15 ] Ms. Hunter’s application was made pursuant to

Part 7, Division 2 of the Queen’s Bench Rules [ Rules ], the following provisions of which are most directly engaged by this appeal: Application for

summary judgment 7-2 A party may apply, with supporting affidavit material or other evidence, for

summary judgment on all or some of the issues raised in the pleadings at any time after the defendant has filed a statement of defence but before the time and place for trial have been set. … Disposition of application 7-5

(1) The Court may grant

summary judgment if: (

a) the Court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (

b) the parties agree to have all or part of the claim determined by

summary judgment and the Court is satisfied that it is appropriate to grant

summary judgment.

(2) In determining pursuant to clause (1)(

a) whether there is a genuine issue requiring a trial, the Court: (

a) shall consider the evidence submitted by the parties; and (

b) may exercise any of the following powers for the purpose, unless it is in the interest of justice for those powers to be exercised only at a trial: (

i) weighing the evidence; (ii) evaluating the credibility of a deponent; (iii) drawing any reasonable inference from the evidence.

(3) For the purposes of exercising any of the powers set out in subrule (2), a judge may order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

(4) If the Court is satisfied that the only genuine issue is a question of law, the Court may determine the question and grant judgment accordingly.

(5) If the Court is satisfied that the only genuine issue is the amount to which the applicant is entitled, the Court may order a trial of that issue or grant judgment with a reference or an accounting to determine the amount.

(6) If the Court is satisfied there are one or more genuine issues requiring a trial, the Court may nevertheless grant

summary judgment with respect to any matters or issues the Court decides can and should be decided without further evidence.

(7) If an application for

summary judgment is dismissed, either in whole or in part, a judge may order the action, or the issues in the action not disposed of by

summary judgment, to proceed to trial in the ordinary way.

(8) If an application for

summary judgment is dismissed, the applicant may not make a further application pursuant to rule 7-2 without leave of the Court. [ 16 ] Mr. McCorriston argues that, while “theoretically” any civil dispute that is subject to the Rules can be determined using the

summary procedure provided for in

Part 7, Division 2, it should not be used to resolve family disputes. He asserts that contested issues of parenting in particular turn on issues of credibility and require a judge to have the opportunity to size up the parties in the witness box. [ 17 ] Mr. McCorriston’s position on appeal appears to be more categorical than that which he took before the Chambers judge. In this regard, the Chambers Decision states that both parties had agreed that “the court may determine a family law issue on a

summary judgment application where there is no genuine issue requiring a trial” (at para 12, emphasis added). However, Mr. McCorriston says this overstates the position he took in the Court of Queen’s Bench. In light of this, and because the point is of general importance, I will say something about Mr. McCorriston’s argument on this first issue. [ 18 ] The question of whether

summary judgment is part of the procedural tool box available for use by the Courts to resolve issues in a family dispute is one of law, reviewable by this Court on a standard of correctness. In my respectful view, even leaving aside the possible agreement of the parties, the Chambers judge was correct when he determined that a litigant may apply for

summary judgment to obtain final relief in a family law dispute. [ 19 ] Queen’s Bench Rule 15-2(2) signals that, with appropriate modification to reflect the nature of family disputes, the general rules of court apply to family proceedings: 15-2

(2) Unless provided otherwise by enactment or the rules in [Part 15] the general procedure and practice of the Court must be adopted and applied, with necessary modification, in a family law proceeding. [ 20 ] This province’s Rules stand in contrast to those in Alberta, which provide that the

summary judgment procedure is not generally available in family law matters, except for claims under that province’s Matrimonial Property Act , RSA 2000, c M-8 (see Rule 12.48 , Alberta Rules of Court , Alta Reg 124/2010 ). Therefore, for example, in Maciborski v Maciborski , 2018 ABCA 297 at para 31 , the Court noted that “Rules 12.48 and 12.49 of the Alberta Rules of Court … allow

summary trials, but they do not allow

summary judgment on child and spousal support”. [ 21 ] I see no reason in principle why

summary judgment should not be available to resolve family law disputes in this province. The

summary judgment procedure is concerned about ensuring that court processes are proportionate and provide affordable, timely, and just adjudication of civil disputes. Justice Karakatsanis introduced her judgment in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 [ Hryniak ], by stating as follows: [1] Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.

Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted. [2] Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.

The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. [ 22 ] In short, the overall objective of the

summary judgment procedure is to give the court additional tools to provide a fair and just decision resolution that is proportionate, and more expeditious and less expensive than a trial. In this regard, I agree with Goebel J. when she said in Pippin v Pippin , 2014 SKQB 348 at para 21 , 459 Sask R 313 [ Pippin ], that “[w]hile the Supreme Court considered the

summary judgment rules in a civil, non-family law context, the same rationale must certainly apply in family law matters where access to justice concerns are even more pronounced”. This conclusion is also consistent with the approach taken in other provinces that have structured their rules of court to allow for

summary procedure in family law matters. For example, in Dell v Dell , 2017 MBCA 34 at para 15 , 4 CPC (8th) 265, Pfuetzner J.A. stated that Manitoba’s Court of Queen’s Bench Rule 20.01, which is the equivalent to this province’s Rule 7-2, “is, in principle, available in a family proceeding, including to obtain a divorce”, relying on jurisprudence from Ontario, Manitoba, and Prince Edward Island. See also: Chao v Chao, 2017 ONCA 701 at paras 27–28 , 99 RFL (7th) 281. [ 23 ] Behind Mr. McCorriston’s argument on this first issue is the notion that the use of the

summary judgment process will not produce a fair , or appropriate, result in family dispute circumstances. In my respectful view, the concern for substantive fairness with the

summary judgment procedure is not best met by taking

summary judgment off the table in family disputes. Instead, it should be addressed by ensuring that

summary judgment is granted only when the court is able to adjudicate the dispute before it in a manner that achieves a fair and just result. This principle applies not just to family disputes, but in all cases where

summary judgment is requested. Rule 7-5(1) allows for

summary judgment where “the Court is satisfied that there is no genuine issue requiring a trial”. In this regard, in Hryniak , the Supreme Court of Canada inextricably linked the determination of whether a genuine issue requiring a trial exists with the ability of the court to make a fair and just determination on the merits of the issue in dispute: [49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result .

[50] These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication. When a

summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly , a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute .

It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. (Emphasis added) [ 24 ] Placing these comments into the context of this case, it was appropriate for the Chambers judge to have entertained Ms. Hunter’s application, but it was proper for him to have granted

summary judgment only if he was confident that a fair and just determination could be reached on the merits of the case itself. [ 25 ] I agree with Mr. McCorriston to this extent: courts considering an application for

summary judgment must be alive to the realities of family disputes. Trial courts need to be cautious when making final orders on the basis of affidavit evidence, particularly in a family law context. An affidavit is the ultimate form of leading a witness. An affiant provides the facts to a lawyer to be included in the client’s sworn statement. However, the words and organization of the evidence are heavily influenced by the lawyer who draws the affidavit.

Justice Lauwers put it this way in Baywood Homes Partnership v Haditaghi , 2014 ONCA 450 , 120 OR (3d) 438: [44] … Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a

summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all. [ 26 ] In every case, a judge considering a request for

summary judgment will need to determine if the material issues at stake can be fairly resolved without hearing the parties testify. In making this assessment, judges will need to sort out the nature of the disagreements, if any, and whether the

summary judgment procedure allows for material disagreements to be fairly resolved. Judges will also need to consider whether the efficiencies associated with

summary judgment are more perceived than real. I will give two examples. [ 27 ]

Summary judgment may be inappropriate where there are only a few witnesses and the time to prepare affidavits and conduct cross-examinations on them will be as arduous and time-consuming as simply setting the matter down for a short trial.

Summary judgment also may be inappropriate where there are conflicting affidavits and the judge considers that cross-examination on the affidavits, or the hearing of oral evidence pursuant to Rule 7-5(3), will be an unsatisfactory method for resolving material conflicts. All of this is case specific. Fundamentally, the use of the

summary judgment procedure in a family law context, as in any other, must be measured against the principles of timeliness and proportionality, keeping in mind that, before

summary judgment can be granted, the court must have confidence that a fair and just result will be achieved. [ 28 ] As will become apparent from my discussion of the second and third issues in this appeal, this is not a case where it is necessary to develop more refined principles than these to assist in identifying when

summary judgment is appropriate in a family law context. For the moment, in answer to the first question posed in this appeal, in my respectful view, the Chambers judge correctly determined that the

summary judgment procedure was available to Ms. Hunter to seek the relief claimed in her notice of application. B. Did the Chambers judge err in granting judgment with respect to issues of parenting on a

summary basis? [ 29 ] The Chambers judge granted

summary judgment with respect to issues of parenting because he concluded that there was no genuine issue requiring a trial.

It is now settled that the question of whether there is a genuine issue requiring trial is a question of mixed fact and law, which is reviewable absent an extricable error in principle against a standard of palpable and overriding error ( Hryniak at para 81 ; Deren v SaskPower , 2017 SKCA 104 at para 41 ). [ 30 ] In my respectful view, the Chambers judge erred in principle in his determination that no genuine issue for trial existed with respect to issues of parenting in the circumstances of this case. [ 31 ] To assist in understanding this conclusion, it is helpful to provide some further context of the issues and evidence before the Chambers judge, and then turn to how the Chambers judge approached the challenge of answering whether he could resolve the issues without a trial. [ 32 ] There was a core of undisputed facts before the Chambers judge.

The details of the parties’ marital relationship were not in dispute. Following separation of the parties, the children had continuously lived with, and been in the care of, Ms. Hunter. It was also accepted by the parties that, as events unfolded, parenting did not continue in accordance with the court orders I reviewed earlier. Rather, by the time Ms. Hunter’s

summary judgment application was argued in late 2018, Mr. McCorriston had not parented the children since December 31, 2016, and had not had any contact with the children since May 19, 2017. [ 33 ] Outside of the core facts, there were also many other details contained in the affidavits where it could be said there was no dispute. I will mention only a few of these details. There seemed to be no dispute that for much of the time post-separation, Mr. McCorriston worked at various jobs located some distance from the town where the parties had resided when together and where Ms.

Hunter continued to reside with the children. When Mr. McCorriston was not away working, he lived in the basement of his mother’s home. Additionally, contrary to the court orders, on at least some occasions Mr. McCorriston consumed alcohol during his parenting time – a fact which led to him being found in contempt of court on May 29, 2014. [ 34 ] However, while there appeared to be no controversy in the areas I have mentioned and some others, significant facts were in dispute. The key point of disagreement, and central to the question of what parenting order was appropriate in this case, was the cause of

the breakdown in the relationship between Mr. McCorriston and the children. Mr. McCorriston’s contention was that Ms. Hunter alienated the children from him. Ms. Hunter’s basic narrative was that Mr. McCorriston’s own actions brought on his estrangement from the children. [ 35 ] Ms. Hunter’s evidence in her initial affidavit supporting her request for

summary judgment was brief. After narrating key points relating to the procedural aspects of the dispute between the parties, her evidence dealing directly with the issue of parenting was limited to six paragraphs, one of which, in turn, had five subparagraphs. The focus of this evidence was on the absence of Mr. McCorriston from the lives of the children. The overall impression the affidavit leaves is one of disinterest on the part of Mr. McCorriston in his children. For example, Ms. Hunter states: 11. [Mr. McCorriston] has not had any contact with the children, including phone calls since May 2017.

The last time that [Mr. McCorriston] had scheduled parenting with the three children was on October 24, 2016. He then had additional time which I arranged on his last minute request from December 31, 2016 to January 3, 2017. However, the children ran away from [Mr. McCorriston’s] home at that time and he has not had any parenting since that date. … 13. There has not been any direct request from [Mr. McCorriston] to me for access to the children since January 2017. The last time that [Mr. McCorriston] has phoned the children was May 17, 2017. [Mr.

McCorriston] did not call or communicate with the children on Father’s day despite me asking them if they wanted to contact their father. The last time that the children or I had any communication with [Mr. McCorriston] was May 19, 2017. 14. Up until recently, I had diligently provided [Mr. McCorriston] with information regarding the children including entire summer scheduled [ sic ], dates of swim lessons, band concert dates, and year end school activities. [Mr. McCorriston] has elected not to attend any of the extra-curricular activities nor has he attended any school functions. [Mr.

McCorriston] did not even acknowledge Christmas or birthdays. [Mr. McCorriston’s] claims that I have thwarted, denied, restricted or discouraged his involvement are untrue and unsubstantiated. [ 36 ] Mr. McCorriston filed a lengthy responding affidavit. Over the course of 92 paragraphs, he provided his evidence (no doubt from his perspective) relating to (

a) his relationship with Ms. Hunter and the children, (

b) his work history following the separation, resulting in his absence from the town where the parties resided, (

c) a chronological review of his parenting and parenting opportunities – some details of which are not flattering to him, but provided by him nonetheless, and (

d) events, both recent and also more remote in time, that would tend to support his contention that Ms. Hunter bears responsibility for alienating the children from him and has denied him the ability to contact the children. [ 37 ] Significant aspects of Mr. McCorriston’s evidence were later disputed by Ms. Hunter in her reply affidavit, although much of it was not. [ 38 ] The result of all of this was that the affidavit evidence, in both detail and in general terms, was highly contradictory. For example: (

a) Ms. Hunter’s evidence was that the children are not comfortable with Mr. McCorriston and are reluctant to spend any time with him. On the other hand, Mr. McCorriston’s evidence was that when he was not working in 2013 after the separation, he was “communicating regularly with [Ms. Hunter] for the purpose of spending time with the children”. He said further that he had difficulty arranging for access, and “most of the time … was told they were otherwise busy”. Ms. Hunter made no specific reply to this evidence. (

b) It was the evidence of Mr. McCorriston that, around July 2014, he was working away from home two weeks on and two weeks off. As such, he attempted to have the children during the two weeks he was home from work. Ms. Hunter refused and only allowed Mr. McCorriston to have the children for four and a half days a month during this period. In her reply affidavit, Ms. Hunter described aspects of Mr. McCorriston’s evidence as “incorrect” and offered her own version of events: 5. … [Mr. McCorriston’s] statement regarding that in or about July 2014 his work

schedule changed is incorrect. We received a letter from his lawyer dated January 2014, approximately 2 months after court requesting court dates, advising that his work

schedule changed. When [Ms. L.], my current legal counsel at the time, asked if his

schedule could change again they advised that is was probable. Therefore, [Ms. L.] suggested that continuing status quo might be the best until his employment is stabilized and encouraged [Mr. McCorriston] to provide his years employment schedule, which [Mr. McCorriston] failed to do. I understand from the reference to “continuing status quo” that Ms. Hunter was taking the position at that time that Mr. McCorriston should not be afforded the parenting time provided for in the extant parenting orders. (

c) Mr. McCorriston gave evidence about three specific incidents in January, March, and May 2015, relating to events which he associates with Ms. Hunter alienating the children from him. Ms. Hunter’s reply affidavit only responded to one of these three events. In connection with that event, she described Mr. McCorriston’s evidence as “untrue” and provided her own narrative of events. She provided no specific reply to the other two incidents identified in Mr. McCorriston’s affidavit. (

d) Mr. McCorriston’s last parenting opportunity was scheduled for the period between December 31, 2016 to January 3, 2017, but ended on December 31, 2016. The parties’ evidence about how all this came about was detailed, nuanced, and conflicting, including as to what arrangements were agreed to and how the parenting opportunity ended.

(

e) In paragraph 13 of her affidavit (quoted in full earlier), Ms. Hunter had stated that “[t]here has not been any direct request from [Mr. McCorriston] to me for access to the children since January 2017.” By my count, 16 paragraphs in Mr. McCorriston’s responding affidavit (74-88 and 92) addressed this contention in one way or the other. Mr. McCorriston gave detailed evidence showing phone calls, emails, letters, and visits to schools and sporting events. Ms. Hunter’s reply affidavit directly addressed only four of these paragraphs: 77, 82, 83, and 88.

All of this put much into controversy and certainly places a different hue on the statement made by Ms. Hunter in her original affidavit that Mr. McCorriston had not made any “direct requests” for access. (

f) In paragraph 14 of her affidavit (quoted in full earlier), Ms. Hunter stated that until recently she had “diligently provided [Mr. McCorriston] with information regarding the children” and their activities and that Mr. McCorriston “has elected not to attend any of the extra-curricular activities”. Mr. McCorriston stated in his affidavit: 91. That with respect to paragraph 14 of the Affidavit of the [Ms. Hunter], I have not received any correspondence about the children’s activities.

Further, I work very long hours and unfortunately this means that it is very difficult for me to attend the activities the children are in. I have made an effort to attend the children’s activities when I am able to. Ms. Hunter did not reply to Mr. McCorriston’s evidence on this point. [ 39 ] The point of this review is not to suggest that Mr. McCorriston’s evidence should have been preferred by the Chambers judge over the evidence of Ms. Hunter, or to suggest that his evidence should lead to a particular parenting order.

It is, however, to identify that in order to determine that there was no genuine issue for trial, it was necessary to either resolve this conflict in the evidence or find that the conflict in the evidence was irrelevant to the determination of the parenting issue. In this case, the Chambers judge did neither . [ 40 ] It is clear that the Chambers judge did not attempt to resolve the conflict in the evidence. Rule 7-3(2) allows the court to “draw an adverse inference from the failure of a party to cross-examine on an affidavit or to file responding or rebuttal evidence”.

The Chambers judge did not purport to base his decision on the failure of either party to cross-examine the other, nor would it seem logical to do so given neither party sought to resolve points of controversy using this tool. The Chambers judge also had the powers given pursuant to Rule 7- 5(2) to weigh evidence, evaluate the credibility of deponents, and draw reasonable inferences from the evidence. Here, though, the Chambers judge did not purport to exercise any of these powers – or if he did, he did not say so in the Chambers Decision .

Instead, after quoting from Pippin and one other case to support the notion that

summary judgment is a procedural option if there is no genuine issue requiring a trial, the Chambers judge ended his analysis of this issue as follows: [16] The court does accept this as the law in Saskatchewan and does find that there is sufficiently clear and uncontroverted relevant evidence that the court may proceed with a determination of the issues before it. [ 41 ] Respectfully, the Chambers judge’s conclusion put the proverbial cart before the horse.

In the face of clearly controverted evidence, the Chambers judge could find the facts and reach a fair and just result only if he examined the detail of the affidavit evidence, identified the points of disagreement, and then assessed whether he could resolve the conflicts.

As stated by Benotto J.A. in Trotter v Trotter , 2014 ONCA 841 at para 78 , 122 OR (3d) 625 , “[w]hen conflicting evidence is presented on factual matters, a motion judge is required to articulate the specific findings that support a conclusion that a trial is not required”. [ 42 ] Alternatively, if the Chambers judge concluded that he was able to reach a just and fair determination of the issues without resolving the conflict, it was incumbent on him to explain why the matters in controversy were not material to a fair and just determination of what parenting arrangement was in the children’s best interests. [ 43 ] Because the Chambers judge neither resolved the conflict in the evidence nor determined that the existence of a conflict in the evidence was irrelevant to his determination, he erred in principle in his approach to Ms.

Hunter’s request for

summary judgment in respect to issues of parenting. This error in principle is ultimately grounded in the failure to appreciate that, in a

summary judgment context, the issue of process is inextricably tied to the issue of substance . [ 44 ] The assessment of whether

summary judgment is appropriate as a process and whether there is a genuine issue requiring trial must generally be answered at the same time , because in most cases they are two sides of the same coin.

Summary judgment can be granted if “there is no genuine issue requiring trial with respect to a claim or defence” (Rule 7-5(1)(a)). In connection with this, the existence of a “genuine issue” is seldom in dispute. Instead, in most cases, the issue at large when a motion for

summary judgment is presented is whether the resolution of that issue requires a trial in order to sort out the facts. To assess if a trial is required, a Chambers judge must get into the detail of how the issue and evidence interrelate, and then decide if the evidence allows the issue to be fairly resolved. This follows from the idea that no genuine issue requiring a trial exists if facts can be found , law applied, and a fair and just determination on the merits achieved.

In the course of undertaking this process, the judge has discretion whether, if necessary, to use the so-called “new powers” set out in Rule 7-5(2) (i.e., to weigh evidence, evaluate credibility, and draw reasonable inferences) in order to sort out the facts. However, the fundamental question does not change – the question remains whether a trial is required to reach a fair and just determination of the issue.

These points were said, perhaps more succinctly, in Blue Hill Excavating Inc. v Canadian Western Bank Leasing Inc ., 2019 SKCA 22 , [2019] 4 WWR 393, with reference to paragraph 49 of Hryniak : [41] This test presupposes that when

summary judgment is granted the court has reached a fair and just determination ; the point simply being that the

summary judgment process is appropriate in any particular case because it is possible for the court to reach a fair and just determination of the issue(

s) before it. Therefore, when

summary judgment is granted, the issues of process and merits are inextricably intertwined. (Emphasis in original) [ 45 ] The danger associated with reaching a conclusion that

summary judgment is an appropriate process in a particular case before assessing the merits is that this approach risks obscuring how the facts were found and a fair and just result was achieved. This danger

became reality in this case. [ 46 ] When the Chambers judge entered into an analysis of what parenting order was appropriate, he summarized the evidence offered by Ms. Hunter. Much of this was disputed by Mr. McCorriston. At no point did the Chambers judge consider the conflicting evidence, except to accept as a conclusion the outcome that Ms. Hunter offered: [23] This issue is summarized quite succinctly in the brief of law and argument of [Ms. Hunter] wherein it states at para. 53: 53. Without minimizing the impact of legitimate alienation claims, [Ms.

Hunter] adamantly states that these facts are not representative of such a situation. [Mr. McCorriston] has become estranged from the children, but cannot ask the court that the only explanation is that [Ms. Hunter] has alienated the children from him. He has displayed an apathetic and non-interested approach to the children for at least the last 2 years and accordingly the children have grown distant. He has continually refused to address his own actions and behaviours as they impact parenting and is only now bringing his allegation forward by way of a response to [Ms. Hunter’s] own application for judgment.

The court accepts this as an accurate

summary. [ 47 ] In the face of the highly conflicting evidence, and in the absence of cross-examination, I doubt very much if it was open to the Chambers judge to make a credibility assessment, but in any event that is not how the Chambers judge presented his reasoning.

Instead, after extensive quotations from case authority dealing with “custody, access, children’s wishes, parental alienation and the best interests of the children” (at para 26), the Chambers judge indicated that “[ b ] ased upon the extensive volume of affidavit evidence provided by each of the parents in the within action, the court is comfortable with maintaining the current parenting structure” (at para 30, emphasis added). The appropriateness of

summary judgment cannot be measured by the volume of the record put before the court. Even if the Chambers judge’s reference to the volume of the record was intended to be metaphorical, respectfully his reasons lack explanation for how, in the face of the contested facts, a fair and just determination of the matter could be achieved. [ 48 ] At one point in his analysis, the Chambers judge referred to a statement made by another Court of Queen’s Bench judge in October 2016, which left the implication that Mr. McCorriston had no complaint with the parenting opportunities he had been afforded by Ms. Hunter.

In this Court, Ms. Hunter picked up on this to support her contention that the allegation of parental alienation was a recent fabrication not requiring a trial. Mr. McCorriston’s answer to this was that the significant problems with parenting opportunities began after this date. The evidence allows for either view. In the context of this appeal, the important point is that this reality demonstrates yet another failure by the Chambers judge to turn his mind to the contentious evidence on important points. [ 49 ] Ms. Hunter’s notice of application requested an order that there be joint custody, which Mr.

McCorriston is also requesting. However, in oral argument, Mr. McCorriston took the position that if the

summary judgment was set aside it is proper that all aspects of the parenting order be vacated, including that part which ordered joint custody of the children. I understood Ms. Hunter to take the same position, since her agreement on joint custody was, to some extent at least, grounded in the court providing very limited parenting time to Mr. McCorriston. Accordingly, all aspects of the judgment respecting parenting issues should be set aside, including the judgment for joint custody. C. Did the Chambers judge err in granting the child support order on a

summary basis? [ 50 ] Child support was the subject of a separate order. Therefore, apart from the recognition in Rule 7-5 that judgment may be given with respect to part of a dispute, it is important to analyze separately whether the support order should have been granted summarily. [ 51 ] The Chambers Decision directs as follows with respect to Ms. Hunter’s request for child support: [46] Based upon the estimated 2018 income of [Mr. McCorriston] he shall pay s. 3 child support, commencing December 1, 2018, of $736.00 per month and s. 7 expenses in the amount of $250.00 per month, based upon the proposal of [Ms.

Hunter] to waive payment of s. 7 arrears if s. 7 payments of $250.00 per month are paid on time for the next 12 consecutive months. [ 52 ] Mr. McCorriston generally complains that the order should not have been granted on a

summary basis because he had not received adequate disclosure of information relating to the corporation through which Ms. Hunter conducted her professional practice. He also offers specific objections to the orders pursuant to both s. 3 and s. 7 of the Guidelines . [ 53 ] In my respectful view, because the parenting arrangements remain at large, it is inappropriate to make a final order of s. 3 support. For that reason, the order pursuant to s. 3 of the Guidelines must be set aside. [ 54 ] With respect to the order pursuant to s. 7, Mr.

McCorriston says that the Chambers judge erred in his determination of s. 7 arrears. Mr. McCorriston argues that Ms. Hunter had not adequately proven the existence of future s. 7 expenses, and, in any event, submits that it was inappropriate to make a future order for s. 7 expenses. I do not consider it necessary to sort through any of these issues, because there is a more basic problem with the s. 7 order. [ 55 ] The Chambers judge ordered Mr. McCorriston to pay $250 per month. This is an amount greater than Ms. Hunter requested.

The Chambers Decision contains no express reason for doing this, but the implication appears to be that it is a form of compensation for past expenses with respect to which Mr. McCorriston had made no contribution. The fundamental problem with this is that Ms. Hunter’s notice of application contained no request for arrears of s. 7 expenses. There was, therefore, no foundation for ordering Mr. McCorriston to pay $250 per month towards extraordinary expenses. V. Conclusion

[ 56 ] For the reasons I have given, I would allow Mr. McCorriston’s appeal and remit the matter to the Court of Queen’s Bench. [ 57 ] I would order Ms. Hunter to pay Mr. McCorriston’s costs in this appeal and in the Court of Queen’s Bench, which I would fix at $5,000.00 in total (the same sum awarded to Ms. Hunter following the previous proceedings in this Court). This amount includes the costs in connection with the previously decided application for security for costs. “Leurer J.A.” Leurer J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Whitmore J.A.” Whitmore J.A.