Thievin v Thievin, 2019 SKCA 128

Court of Appeal for Saskatchewan Docket: CACV3455 Citation: Thievin v Thievin , 2019 SKCA 128 Date: 2019-11-26 Between: Dion Denes Thievin Appellant (Petitioner) And Alison Marie Thievin Respondent (Respondent) Before: Richards C.J.S., Caldwell and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Tholl On Appeal From: 2019 SKQB 182 , Regina Appeal Heard: October 11, 2019 Counsel: W. Timothy Stodalka for the Appellant Joanne C. Moser, Q.C. and Kayla R.

McKinnon for the Respondent Caldwell J.A. I. introduction [ 1 ] This appeal involves an interim mobility application. Dion Denes Thievin appeals against the July 30, 2019, fiat [ Fiat ] that allowed Alison Marie Thievin to move with the parties’ three children from Estevan, Saskatchewan, to what was described as the Tantallon/Rocanville/Moosomin area of Saskatchewan [Moosomin Area]. Mr. Thievin submits the Chambers judge erred in law and made palpable and overriding errors of fact in allowing the move. [ 2 ] Mr. Thievin says the Chambers judge erred in principle by treating Ms.

Thievin’s interim application as an application for a final order. He asserts the Fiat is contrary to well-established authority that eschews allowing moves on an interim basis because that tends to determine issues of custody and access in a final way by establishing a new status quo. Moreover, Mr. Thievin says this interim mobility application should not have been determined in the face of conflicting affidavit evidence as to the best interests of the children. He seeks to adduce fresh evidence in support of his appeal. [ 3 ] I would dismiss the fresh evidence application, with costs to Ms. Thievin.

However, for the reasons that follow, I would allow the appeal and set aside the Fiat , other than the direction that this matter proceed to pretrial. I would not make an order as to costs in this appeal. II. background [ 4 ] The parties married in 2002. They moved to Estevan in 2004, where they continue to reside with their three children. They separated in 2016. Mr. Thievin filed a petition and Ms. Thievin filed a counter-petition for divorce and corollary relief in November 2016. [ 5 ] In a September 25, 2017, fiat [ September 2017 Fiat ], Megaw J. granted Ms.

Thievin, who had been a stay-at-home parent during the marriage, exclusive possession of the family home and ordered that the children be primarily resident with her. Those orders were unopposed by Mr. Thievin. Justice Megaw also ordered “reasonable parenting time” for Mr. Thievin “on reasonable notice” but allowed the parties to bring the matter of access back before the Court if they were unable to work it out. [ 6 ] The matter came back before the Court quickly. Under a fiat dated November 15, 2017 [ November 2017 Fiat ], Brown J. ordered that Mr.

Thievin should have parenting time with the children every second weekend. He also addressed Ms. Thievin’s first interim application for an order allowing her to relocate with the children, in that case to Tantallon, Saskatchewan. Justice Brown dismissed her mobility application, remarking that “interim relocations are normally only allowed in compelling circumstances which establish it to be in the children’s best interests to relocate.” Applying the law to the circumstances before him, Brown J. wrote: Compelling circumstances for the children’s relocation to Tantallon have not been shown to exist here.

If confirmation of an employment opportunity for [Ms. Thievin] along with a continuing refusal by [Mr. Thievin] to pay the amounts set out herein [i.e., child and spousal support] were established that could well change things. I dismiss the application for a move at this time without prejudice to an application for such move in the future, should circumstances change. However, the facts are at this point lacking insofar as establishing the requisite compelling circumstances.

In considering this matter as an interim application, the children’s best interests are better served by continuing, in the interim, to reside in the vicinity of Estevan. Notably, Brown J. also ordered that the family home be listed for sale on conditions agreed to by the parties or as might be set by the Court in the absence of the parties’ agreement.

[7] Two years later, on June 3, 2019, Ms. Thievin applied afresh for an interim order allowing her to relocate with the children,this time more broadly to the Moosomin Area. In her materials, Ms. Thievin outlined her financial situation, which she connected to herability to meet the basic needs of the children. Among her financial circumstances, Ms. Thievin deposed that the family home was subjectto an order nisi for judicial sale and she was financially unable to redeem or reinstate the mortgage, advising that the 90-day redemptionperiod had expired.

In short, she predicted that she would be required to vacate the family home in the near future. She averred that shefears she and the children will become homeless. She attested that, if she and the children were forced to reside in low income housing, thebusing arrangements would be such that the children would have to change schools. Ms. Thievin deposed to having depleted her credit andto owing significant credit card debt. Lastly, Ms. Thievin said her vehicle was in disrepair and she could not afford to fix it. [8] As to her request to relocate, Ms.

Thievin averred that each of her two sisters and her father, all of whom who reside in theMoosomin Area, are willing to provide her and the children with free accommodation. She said one of her sisters had offered her the use ofa vehicle and had agreed to cover the children’s s. 7 “fees”. However, there was no affidavit evidence from her sisters or her father in thatregard. Ms.

Thievin also deposed that she had been unable to find employment in Estevan due to the downturn in the oil industry and, eventhough she did not have a job lined up in the Moosomin Area, she believed she would have better employment prospects there. [9] In his responding affidavit, Mr. Thievin denied being an absentee parent and gave examples of how Ms. Thievin hadfrustrated his efforts to see the children. He averred that two of the three children had expressed unwillingness to move away from Estevanbut acknowledged that the third was in favour of it. Mr. Thievin contested much of what Ms.

Thievin had said about her job prospects inEstevan, about local rental rates, and about how the children would be bused to school if they moved into low-income housing. Headvised that one of the children has a reading disability and he questioned whether the same level of support as is available in Estevanwould be available in the Moosomin Area. He exhibited to his affidavit a Maintenance Enforcement Office statement of arrears indicatingthat he had paid ongoing child and spousal support since September 2018. He denied Ms. Thievin’s allegation that he had failed to make s.7 payments.

III. chambers decision [10] The Chambers judge began her analysis of Ms. Thievin’s interim mobility application by identifying the two principal issuesbefore her, namely, whether Ms. Thievin had demonstrated a material change in circumstances and, if so, whether relocation would be inthe best interests of the children. [11] As to material change, the Chambers judge found “the evidence overwhelmingly demonstrates that Ms. Thievin’s financialsituation has significantly deteriorated since November 2017, when Justice Brown made the last substantive order respecting childcustody and parenting time” (at para 9).

After reviewing the evidence that she saw as supportive of this finding, the Chambers judge ruledthat “a material change in Ms. Thievin’s financial circumstances has been demonstrated which materially affects the children and couldnot have been reasonably contemplated by Justice Brown” (at para 13). [12] With regard to the proposed relocation, after referring to Mantyka v Dueck, 2012 SKCA 109, 399 Sask R 303, and Gordon vGoertz, (SCC), [1996] 2 SCR 27, the Chambers judge remarked that it was in the children’s best interests to continueliving in Ms. Thievin’s primary care, given her strong connection to them.

She then stated that Ms. Thievin’s “dire financial situation” hadto be addressed and found the only “reasonable solution available” was to permit her to move to the Moosomin Area, where she wouldhave free accommodation and “some meaningful prospects” for employment (at para 18). As additional factors, the Chambers judgefound the availability of a “stable, known and affordable home”, “extended family support” and a vehicle in the Moosomin Area wouldgive Ms.

Thievin better prospects of obtaining employment as compared to Estevan. [13] As to how the proposed relocation would affect the children’s “meaningful relationship with their father”, the Chambers judgenoted the children only see Mr.

Thievin every second weekend, with no evidence that he saw them outside that specified parenting time.Given this, the Chambers judge found it was “possible to maintain the relationship and the current parenting time without muchdisruption” if the children were relocated to the Moosomin Area (at para 19). [14] Turning to the children themselves, the Chambers judge found the evidence did not show that the children opposed the move.She observed that the oldest child would be starting high school in the fall and therefore concluded “this was a feasible time to move” (atpara 20). The Chambers judge found that, if Ms.

Thievin were to move into low-income public housing in Estevan, the younger childrenwould have to change schools. She also found relocation would not disrupt the children’s extracurricular activities because they had nonedue to the family’s financial situation.

Although she found that relocation would affect the children’s friendships in Estevan, that factor didnot persuade her that the move would not be in their best interests “given the other circumstances” (at para 20). [15] The Chambers judge then ruled that a move into low-income housing in Estevan would not be in the children’s best interestswhen that option was juxtaposed to a move to the Moosomin Area. While recognising that subsidized housing in Estevan would addressthe housing problem, the Chambers judge noted it would not address Ms.

Thievin’s “significant financial strain, debt, lack of a vehicle,and continued unemployment”, finding these concerns would affect the children’s interests. Conversely, the Chambers judge foundrelocation with free accommodation “should have a significant beneficial effect on Ms. Thievin’s financial strain, will provide her with afree vehicle to use, and will support her efforts to find employment” and that “[r]esolving these difficulties is in the children’s bestinterests” (at para 21).

Lastly, given her finding that “substantial grounds exist to support that it is in the children’s best interests to movewith their mother”, the Chambers judge found “there is a strong possibility that Ms. Thievin would be permitted to move with the childrenafter a trial” (at para 22). The Chambers judge therefore allowed Ms. Thievin to move to the Moosomin Area with the children. [16] The Chambers judge also reaffirmed the order that Mr. Thievin would have parenting time with the children every secondweekend.

Since the children would be relocated, the Chambers judge ordered the parents to share responsibility for transportation to andfrom the Moosomin Area. The Chambers judge ordered that Mr. Thievin have two weeks of parenting time in August 2019. Lastly, theChambers judge directed that the matter proceed to pretrial.

IV. Fresh evidence application [17] Mr. Thievin applied under Rule 59 of The Court of Appeal Rules for leave to adduce fresh evidence on appeal. The profferedevidence may be described as pertaining to the immediacy of the sale of the family home, the availability of low-income housing inEstevan, and the proximity of low-income housing to the school the two youngest children attend in Estevan. Ms.

Thievin argued againstleave being granted on the grounds of late service, failure to satisfy the test in Maitland v Drozda, (SK CA), [1983] 3WWR 193 (Sask CA), and contravention of Rule 15-20(3) of The Court of Queen’s Bench Rules on the inclusion of hearsay evidence inaffidavits. [18] Addressing only the first ground, I am satisfied that Mr. Thievin’s application for leave must be denied because he failed tomeet the service and filing requirements of Rule 59(2) of The Court of Appeal Rules.

Rule 59(2) provides that an applicant’s notice ofmotion must be served on all parties and filed “not later than 10 days before the date fixed for hearing the appeal.” Although Mr. Thievinreferred in his factum, which was filed 11 days before this appeal was argued, to his intention to seek leave to file fresh evidence onappeal, he did not serve and file his notice of motion to that effect until four days prior to the appeal hearing. While Mr. Thievin had putevidence to similar effect before Schwann J.A., who heard Ms.

Thievin’s application under Rule 15 to lift the stay of execution on August28, 2019, that did not satisfy the service and filing requirements of Rule 59(2). Frankly, given his filings in August 2019, there is nocompelling reason why Mr. Thievin could not have met the requirements of Rule 59(2). Accordingly, Mr. Thievin’s application for leaveto adduce fresh evidence must be denied with costs to Ms. Thievin. V. Appeal [19] In his appeal, Mr. Thievin asserts the Chambers judge erred by approaching the interim mobility application as though it werean application for a final order.

He alleges she ignored well-established authority cautioning the courts against allowing moves on aninterim basis. Moreover, Mr. Thievin questions whether this interim mobility application should have been granted in the face ofconflicting affidavit evidence as to the best interests of the children. [20] I start with the premise that, because the September 2017 Fiat and the November 2017 Fiat had set the terms of custody, accessand parenting of the children, Ms. Thievin’s application sought a variation of the terms of custody established under those Fiats. In thiscase, Ms.

Thievin sought to vary those terms to allow her to relocate with the children to the Moosomin Area. This is commonly referredto as a mobility application. A.

Law [21] Section 17(5) of the Divorce Act, RSC 1985, c 3 (2d Supp), authorises a court to vary the terms of custody only where: … there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the makingof the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, thecourt shall take into consideration only the best interests of the child as determined by reference to that change. [22] Interpreting s. 17(5) for the majority of the Court in Gordon v Goertz, McLachlin J. (as she then was) ruled that the applicanthad to establish a material change in the “condition, means, needs or other circumstances of the child of the marriage” as a thresholdrequirement in a variation application: [10] Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in thecircumstances of the child since the last custody order was made.

Section 17(5) provides that the court shall not vary a custody or accessorder absent a change in the “condition, means, needs or other circumstances of the child”. Accordingly, if the applicant is unable to showthe existence of a material change, the inquiry can go no farther: Wilson v. Grassick (1994), (SK CA), 2 R.F.L. (4th)291 (Sask.

C.A.). (Emphasis added) See also Willick v Willick, (SCC), [1994] 3 SCR 670 at 688, where Sopinka J. set out the same two-step approach tovariation of support orders under s. 17(4) of the Divorce Act; and see Gray v Wiegers, 2008 SKCA 7 at paras 14–15, 291 DLR (4th) 176;Talbot v Henry, (SK CA), [1990] 5 WWR 251 (Sask CA) at paras 38–49. [23] In Gordon v Goertz, McLachlin J. went on to describe, in general terms, what was meant by a material change in the context ofan application to vary a custody order, i.e., a change that satisfies the threshold requirement of the court’s jurisdiction under s. 17(5) of theDivorce Act: [11] The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as anindirect route of appeal from the original custody order.

The court cannot retry the case, substituting its discretion for that of the originaljudge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: [citationsomitted]. [12] What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must havealtered the child’s needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.).

The question is whether the previous order might have been different had the circumstancesnow existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent adistinct departure from what the court could reasonably have anticipated in making the previous order. “What the court is seeking toisolate are those factors which were not likely to occur at the time the proceedings took place”: J. G. McLeod, Child Custody Law andPractice (1992), at p. 11-5.

[13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. (Underlining in original, italics emphasis added) [ 24 ] In short, an applicant seeking to vary an existing custody order under s. 17(5) of the Divorce Act must, as a threshold to the court’s consideration of the merits of that application, establish to the court’s satisfaction that a material change in the condition, means, needs or other circumstances of a child of the marriage has occurred since the court granted the custody order then in effect.

If the threshold is met, only then may the court embark on an inquiry into the merits of the variation application. [ 25 ] If the threshold is met in an application for variation that proposes relocation of the children, the court’s inquiry into the merits of the application is approached under the framework of factors McLachlin J. identified in Gordon v Goertz , namely (at para 49 ): … 2. … the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. 3.

This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia : (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [50] In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community.

The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? (Underlining in original) [ 26 ] However, the exercise of the court’s discretion under s. 17(5) of the Divorce Act in an interim mobility application is tempered by the dicta of Richards J.A. (as he then was) in Mantyka v Dueck (at paras 29–33 ).

Justice Richards outlined the rationale for exercising “significant caution” in interim mobility applications (at para 31), which he distilled from Gordon v Goertz , Benson v Benson , 2011 SKQB 457 at para 18 , 399 Sask R 89, and Ofukany v Ofukany , 2009 SKQB 234 at para 12 , 338 Sask R 196, among others. He declared that significant caution is necessary because the interim relocation of children “can all too easily create a new ‘normal’ and thereby effectively go some distance toward determining the final result of the [custody and access] proceedings” (at para 31).

He warned that it is “both difficult and unwise” to make what may become a final decision about a relocation where the evidence is in affidavit form and is contradictory, inconsistent, incomplete or limited in scope, as is often the case in interim mobility applications. Having regard for this rationale and having in mind the fundamental principle that, in all mobility applications, “[t]he only issue is the best interest of the child” ( Gordon v Goertz at para 49 ), Richards J.A. axiomatically wrote that “interim relocations by a custodial parent are allowed only in compelling circumstances” (at para 33). B.

Analysis [ 27 ] In this case, Ms. Thievin bore the evidentiary and persuasive burdens of establishing that a material change in the condition, means, needs or other circumstances of the children (or any of them) had occurred in the two years following the November 2017 Fiat . If that were established, Ms. Thievin bore the burden of persuading the Court that, on the evidence adduced, the material change in question was such that it would be in the children’s best interests to relocate with her to the Moosomin Area.

While the Chambers judge approached the application before her under this two-step approach, I conclude respectfully that Ms. Thievin had failed to discharge the evidentiary and persuasive burdens imposed on her at each step. However, as the first step is a threshold requirement to the exercise of the court’s jurisdiction under s. 17(5) of the Divorce Act , I need only address that step in any detail.

[ 28 ] As to that threshold requirement, the Chambers judge described Ms. Thievin’s application as being premised on an assertion that “her dire financial situation constitutes a material change in circumstances” (at para 3). The Chambers judge then paraphrased the law of variation, finding that, “for a change to be material, [it] must have altered the child’s needs or the ability of the caregiver to meet those needs in a fundamental way” (at para 8). Turning to the evidence, the Chambers judge found: [9] In this case, the evidence overwhelmingly demonstrates that Ms.

Thievin’s financial situation has significantly deteriorated since November 2017, when Justice Brown made the last substantive order respecting child custody and parenting time. Ms. Thievin’s finances are now very precarious. She has no income except for child support, limited spousal support, and child tax benefits. She has not secured employment in Estevan, and her prospects for securing employment there are poor, given her skills and the local economy.

Most importantly, an order nisi for judicial sale has been issued in relation to the family home, she is about to be evicted, and she has insufficient financial resources to secure new comparable housing. She has no vehicle, which makes obtaining work and transporting the children difficult. She has very significant personal debt. She has been using her line of credit and her credit cards to finance herself and the children, but she can no longer make the minimum payments. [10] The family property has yet to be divided and is not substantial.

As noted, the family home is in foreclosure, an order nisi for sale has been issued, and neither party has the resources to satisfy the debt prior to the expiration of the redemption period in order to keep the home. There is an interest in a family cabin, but that cabin has not been sold, nor is it listed for sale. Mr. Thievin is in arrears of child support and while he is paying down the arrears, they still exist. The evidence supports that Mr.

Thievin has not paid his share of some s. 7 expenses, pursuant to the Federal Child Support Guidelines , SOR/97-175 , and in particular the children’s medical/dental insurance premiums. Mr. Thievin has not filed his 2018 income tax return, so I do not have evidence of his most current financial situation. At this stage, it does not appear that an equal division of family property would be sufficient to allow Ms. Thievin to keep the family home.

Certainly, it could not be done so expeditiously as to provide the necessary monies prior to the expiry of the redemption period. [ 29 ] I do not question the Chambers judge’s overall finding that Ms. Thievin faces a serious financial situation that affects her ability to meet the needs of the children. That is certainly true. However, I find little in the evidence to support the Chambers judge’s conclusion that this fact constitutes a material change in the condition, means, needs and other circumstances of the children or a material change in Ms.

Thievin’s ability to meet their needs in a fundamental way. [ 30 ] I say the evidence does not support either of those conclusions because, for example, Ms. Thievin has not updated her Financial Statement since Brown J. relied on it under the November 2017 Fiat . At that time, Ms. Thievin had no income except child and spousal support and child tax benefits, which remained true in July 2019 when the Chambers judge heard this matter. Ms.

Thievin was unemployed in November 2017 and still had no employment in July 2019 (she is a certified ASL interpreter and there are no opportunities in that field in Estevan—or in the Moosomin Area for that matter). Further, the unskilled labour market in Estevan was just as dismal in 2019 as it had been in 2017. [ 31 ] In her reasons, the Chambers judge remarked that the most important change in Ms. Thievin’s financial situation was that an order nisi for judicial sale had been issued in respect of the family home and this meant Ms. Thievin and the children would have to vacate it.

Yet, under the November 2017 Fiat , Brown J. had ordered the family home listed for sale. That is, in November 2017, Ms. Thievin knew she and the children would have to vacate the family home and secure new housing in Estevan—she averred to this in her affidavits at the time. While Ms. Thievin had argued before the Chambers judge that eviction was imminent, there was no evidence to suggest that was the case or even that the family home had been sold.

Regardless, the imminence of a sale would not itself amount to a material change because, self-evidently, Brown J. had anticipated the sale of the family home—that is the ultimate consequence of his order.

The fact a sale would occur under the authority of an order nisi adds little to the character of the parties’ financial situation—except to confirm what Brown J. seems to have assumed but left unstated, i.e., that the parties had little or no equity in the family home in 2017. [ 32 ] Similarly, the situation with respect to family property in July 2019 was as it had stood in November 2017—it had not yet been divided and was not substantial in any event. While the Chambers judge noted that “it does not appear that an equal division of family property would be sufficient to allow Ms.

Thievin to keep the family home” (at para 10), that was also the circumstance in 2017 when Brown J. had ordered it listed for sale. [ 33 ] As to Ms. Thievin’s personal finances, in her May 30, 2019, affidavit, she deposed: 13. I am currently in a significant amount of debt. My line of credit has been maxed out at $33,000.00 ever since 2016 when Dion claimed that he was not getting paid and I had to maintain the family home, pay the mortgage, and pay our children’s extracurricular expenses on my own.

I also used my credit card to pay bills and cover day-to-day expenses for the family unit, as well as to pay for Dion’s shop utilities for a period of time. I have roughly $35,000.00 in credit card debt as a result with an interest rate of 19.9%. I have also borrowed an immense amount of money from my family members, including over $35,000.00 for legal fees, and intend to pay them back at some point in the future. To date, however, I have not been able to pay anything back to them. … 16.

I continue to make payments from my line of credit and credit cards provided I am able, as I cannot afford to pay my expenses any other way. I pay for the children’s needs and my own in this fashion, as I obtain very little by way of child support from Dion. I am unaccustomed to carrying high debt loads. Prior to 2016, I had always had excellent credit and have always been financially responsible. Now our children and I are weeks away from being evicted from our home due to the foreclosure proceedings.

I have no means to find new accommodations in Estevan, cannot afford to continue living there. (Emphasis added) [ 34 ] However, in June 2017, Ms. Thievin had averred to “drawing on a line of credit to support our household” and having incurred “substantial debt including the line of credit and credit card statements and had to cash in a mutual fund and GIC to meet our daily expenses.” In her reply affidavit in August 2017, Ms. Thievin swore that Mr. Thievin had “paid off his line of credit and credit cards and not once offered me funds to cover our family debt causing me to live off credit.”

[ 35 ] The status of child support payments had slightly improved. In November 2017, Mr. Thievin had been in arrears and he was still in arrears in July 2019, although he was paying down that debt. He adduced evidence that he had not gone further into arrears after September 2018. The best that can be said about the evidence as to Mr. Thievin’s payment of his share of s. 7 expenses is that it was controverted. [ 36 ] On the other hand, one clear change in Ms. Thievin’s personal circumstances from November 2017 to July 2019 is the fact she had a vehicle in 2017 but no longer had a serviceable vehicle in July 2019.

The Chambers judge found this fact made obtaining work and transporting the children “difficult” for Ms. Thievin. However, the Chambers judge also found that the children are bused to school and have no extracurricular activities. [ 37 ] Having reviewed the affidavit evidence from 2017 and from 2019 in the context of what McLachlin J. said in Gordon v Goertz , I respectfully find the Chambers judge must have misconceived the evidence in a way that affected her conclusion on the issue of whether a change in Ms.

Thievin’s financial situation had occurred that was either not foreseen or could not have been reasonably contemplated by Brown J. when he denied her first interim mobility application. That said, I take absolutely no issue with the Chambers judge’s general finding that Ms. Thievin’s financial situation materially and negatively affects her ability to meet the needs of the children. It is nonetheless clear that this was also the circumstance at the time of the November 2017 Fiat . [ 38 ] In short, the Chambers judge erred when she found the evidence supported a finding of a material change in Ms.

Thievin’s financial situation between November 2017 and July 2019. As the threshold requirement to judicial consideration of a variation application under s. 17(5) of the Divorce Act was not met in this case, the Fiat must be set aside. I would, however, preserve the direction in the Fiat that this matter proceed to pretrial. [ 39 ] Even if the threshold had been met, the affidavit evidence relevant to the factors identified in Gordon v Goertz (at para 49 ) for assessing the merit of a mobility application was, in this case, vague, contradictory or inconsistent, incomplete, and limited in its scope.

That is, the evidence fell far short of establishing compelling circumstances for allowing Ms. Thievin to relocate with the children on an interim basis ( Mantyka v Dueck ). [ 40 ] I would allow the appeal and set aside the Fiat , other than the direction to proceed to pretrial. As to the pretrial, I would direct that the matter be expedited, given the circumstances. I would make no order as to costs. “Caldwell J.A.” Caldwell J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Tholl J.A.” Tholl J.A.