Beauchamp v Beauchamp, 2021 SKCA 148

Court of Appeal for Saskatchewan Citation: Beauchamp v Beauchamp , 2021 SKCA 148 Date: 2021-11-23 Docket: CACV3819 Between: Julien John Beauchamp Appellant (Petitioner/Respondent) And Norma Beauchamp Respondent (Respondent/Respondent) And Gregory Jaret Beauchamp, Jordan James Beauchamp, Beauchamp Farms Ltd. and Beauchamp Acres Ltd. Respondents (Non-Parties/Petitioners) And New Age Farms Ltd.

Non-Party (Non-Party/Respondent) Docket: CACV3867 Between: Julien John Beauchamp Appellant (Petitioner/Respondent) And Norma Beauchamp Respondent (Respondent/Respondent) And Gregory Jaret Beauchamp, Jordan James Beauchamp, Beauchamp Farms Ltd. and Beauchamp Acres Ltd. Third Party Respondents (Non-Parties/Petitioners) And New Age Farms Ltd. Non-Party (Non-Party/Respondent) Before: Ottenbreit, Whitmore and Leurer JJ.A. Disposition: Appeal in CACV3819 allowed in part Appeal in CACV3867 dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Mr. Justice Whitmore On appeal from: DIV 57 of 2020, Swift Current QBG 16 of 2021, Swift Current Appeal heard: September 17, 2021 Counsel: E.F. Anthony Merchant, Q.C. for Julien John Beauchamp Gabriela Fuentealba for Norma Beauchamp Sherry Fitzsimmons, Q.C. for Gregory Jaret Beauchamp, Jordan James Beauchamp, Beauchamp Farms Ltd. and Beauchamp Acres Ltd.

Leurer J.A. I. INTRODUCTION [ 1 ] These two appeals originate in the separation of Julien Beauchamp and Norma Beauchamp. The breakdown in their relationship has impacted the farming operation they carry on with their sons, Gregory Beauchamp and Jordan Beauchamp . [ 2 ] All of this has given rise to several legal proceedings which have come under the case management of a Court of Queen’s Bench judge sitting in Chambers. The judge has made two orders that are the subject of this appeal: (

a) on April 19, 2021, providing for how the parties’ grain farm is to be operated for the 2021 crop year: Beauchamp v Beauchamp (19 April 2021) Swift Current, DIV 57 of 2020 and QBG 16 of 2021 [ Interim Farming Decision ]; and (

b) on July 16, 2021, varying an order made by another Court of Queen’s Bench judge in Chambers, and thereby granting Norma exclusive possession of the family home and also varying the order made pursuant to the Interim Farming Decision : Beauchamp v Beauchamp (16 July 2021) Swift Current, DIV 57 of 2020 and QBG 16 of 2021 [ Variation Decision ]. [ 3 ] Julien appeals from these two orders. I see merit in only one of Julien’s objections to the orders the judge has made.

I would set aside paragraph 27 of the formal order issued following the Interim Farming Decision , which directs Julien to “sign and return the conflict-of-interest waiver so that taxes can be filed”. Otherwise, I would dismiss his appeals. [ 4 ] My reasons follow. II. APPEAL FROM THE INTERIM FARMING DECISION (CACV3819) A. Background 1. Parties [ 5 ] Julien and Norma were married in 1990. Prior to their separation, they resided on NE 36-07-15 W3 [home quarter]. In their time together, Julien and Norma built up a substantial farming operation.

They now own 29 quarter sections of farmland and rent a roughly equivalent number of acres of additional farmland. Although the land is owned by Julien and Norma personally, their farming operation has been otherwise conducted through New Age Farms Ltd. [New Age], a corporation they own and control. [ 6 ] Julien and Norma have two sons, Gregory and Jordan. Both are adults. The sons farm with their parents. They do so through corporations they control, Beauchamp Farms Ltd. and Beauchamp Acres Ltd. These companies have acquired 20 quarter sections of farmland.

In doing this, they have accumulated debt of approximately $4 million, which is guaranteed by New Age. [ 7 ] Both New Age and the sons’ corporations own farm equipment. However, the bulk of the equipment used in the family’s farming operations is owned by New Age. [ 8 ] On July 18, 2017, New Age and the sons’ corporations formed a joint venture called New Age Joint Ventures “for the purposes of carrying on a common farming practice so as to utilize management, equipment, and land in order to operate an efficient and profitable farm”.

Under the joint venture arrangement, ownership of specific assets is retained by the current holder of each asset. Farm expenses are to be paid by the joint venture. Profit, if any, is to be split by agreement. The joint venture agreement contemplates that disputes under it will be determined by way of arbitration. [ 9 ] According to the joint venture agreement, the “overall management and control of the Business and affairs of the Joint Venture shall be vested in the Venturers equally and collectively”.

It has become a contentious issue in the litigation leading to these appeals how the farming operations were, in fact, conducted prior to Norma and Julien’s separation. [ 10 ] One other feature of the joint venture agreement has had a significant impact on how events have unfolded. Its term is indefinite. It is to continue until terminated in accordance with the procedure it sets out. Notice of an intent to terminate must be given prior to February 28 of a given year, failing which, the joint venture agreement “shall continue in full force and effect for the ensuing crop year”. 2.

Legal proceedings [ 11 ] Julien and Norma separated in October 2020. On November 24, 2020, Julien issued a petition seeking judgment for a divorce, division of family property and an order for spousal maintenance.

This proceeding is identified as DIV 57 of 2020 , Judicial Centre of Swift Current, and has been referred to by the parties in some of the materials they have filed as the “Family Action”, terminology that I will use in this judgment. [ 12 ] On December 16, 2020, Keene J. made an order in the Family Action granting Julien exclusive possession of the home quarter, “including the family home situated thereon along with all buildings located on that quarter section” [ Keene Order ].

The Keene Order also provided that Norma “shall be entitled to have a reasonable amount of household goods and all of her personal effects located in the

house”. The Keene Order gave her time to move, following which she was ordered to be “restrained from entering onto the [home quarter] … unless invited to do so by [Julien]”. [ 13 ] On January 25, 2021, Julien made an application, without notice, pursuant to s. 234 of The Business Corporations Act , RSS 1978, c B-10 .

This proceeding is identified as QBG 6 of 2021, Judicial Centre of Swift Current, and has been referred to by the parties in some of the materials they have filed as the “Oppression Action”, terminology that I will use in this judgment. [ 14 ] In the Oppression Action, Julien sought an order removing Norma as a director and officer of New Age or, in the alternative, an order that New Age “give notice to [the sons’ corporations] that it is withdrawing from participation in [the joint venture], effective February 28, 2021”.

That application came before Brown J., who directed Julien to “forthwith serve an application substantially in the form of the without notice application now before the court on Norma via her counsel with a return date of February 9, 2021”. This application was later dismissed by Keene J.: Beauchamp v Beauchamp (12 February 2021) Swift Current, QBG 6 of 2021.

So far as Julien had sought an order that related to service of a notice of termination of the joint venture, Keene J. “agree[d] with Norma’s counsel that [Gregory and Jordan] should have been served and thereby notified” (at para 20). [ 15 ] On February 12, 2021, Gregory, Jordan and their corporations commenced an action against Julien, Norma and New Age. This proceeding is identified as QBG 16 of 2021, Judicial Centre of Swift Current, and has been referred to by the parties in some of the materials they have filed as the “Boys’ Action”, terminology that I will use in this judgment.

The Boys’ Action seeks relief which includes “[m]onetary compensation for their labour and services for farming their Parents’ Farmland on a quantum meruit basis”. 3. Applications and case management [ 16 ] By notice of application dated March 11, 2021, Julien applied, pursuant to s. 8(1) of The Arbitration Act, 1992 , SS 1992, c A- 24.1 , for an order staying the Boys’ Action [stay application].

The stay application was based on the proposition that Gregory and Jordan were required to submit their claim to arbitration under the joint venture agreement. [ 17 ] On March 18, 2021, Norma and Julien made separate applications in the context of the Family Action for orders pertaining to the interim use of farmland, farm equipment and other family assets. Specifically: (

a) Julien applied for the following orders: (

i) pursuant to s. 26 of The Family Property Act , SS 1997, c F-6.3 [ FPA ] that he be granted the sole interim use of substantially all of the land and farm machinery “in order to farm independently from [Norma]”; (ii) pursuant to s. 26 of the FPA , that he immediately receive $700,000 from family assets for input costs for the 2021 crop year; and (iii) pursuant to s. 100 of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 , that Gregory and Jordan be restrained from entering the home quarter and “from directly or indirectly communicating with Julien, except through a member of the Law Society of Saskatchewan, or with the supervision of a member of the Royal Canadian Mounted Police”. (

b) Norma applied for various orders, including: (

i) consolidating the Family Action with the Boys’ Action, or, alternatively, adding Gregory and Jordan as parties to the Family Action; (ii) pursuant to s. 29 of the FPA , appointing herself, or alternatively Gregory or Jordan, “as receiver of [New Age] on an interim basis with the sole authority to act on behalf of the corporation in the corporation’s best interests”; (iii) that the joint venture “shall farm all the collective land owned and/or leased by the parties for the 2021 farming year and that Julien Beauchamp shall take no action to hinder the operation of the farm”; and (iv) pursuant to s. 5 of the FPA , that she be given exclusive possession of the home quarter. [ 18 ] By this point, it had become evident to the parties that their contentious litigation was standing in the way of the operation of their farm.

Spring seeding was fast approaching and something had to be done. Not only had the parties commenced the three proceedings I have identified, they also had filed volumes of affidavit evidence. Much of this is summarized in a March 24, 2021, letter addressed to the Chief Justice of the Court of Queen’s Bench. The letter was written jointly by legal counsel for all parties. [ 19 ] The overarching purpose of the March 24, 2021, letter was to serve as a request for an order appointing a judge for a post- pleading conference.

After summarizing the history of the proceedings, the letter identified the issues in the outstanding litigation, including matters in dispute and where agreement existed. In relation to the Family Action, the letter noted that the division of family property would involve not only the home and personal effects, but also “land, leases and shares in New Age Farms Ltd.”, and that it was “likely that division of the interests in New Age Farms Ltd. will require division of the equipment, tools and input assets by New Age Farms Ltd.”.

The letter identified that there would be a need to address issues relating to the dissipation of family property in connection with farm assets. It added that the existence of the Boys’ Action “brings into issue

section 21[(3)](

n) of The Family Property Act (interests of third parties in family property)”. Finally, on this subject, the letter observed that “there is significant interplay between the Boys’ Action and the Family Action”. The letter explained the issues in dispute in the Boys’ Action.

It further stated that the “parties recognize that the Boys’ Action is collateral and subsidiary to the dispute between Norma and Julien”, but that “[c]onsolidation of the actions, and their respective subject matter, gives the Boys [the] opportunity for their concerns to be meaningfully addressed in the division of the family property”. [ 20 ] Notwithstanding the areas where disagreement existed, the parties stated that they were “unanimously in support of appointment of a judge for a post-pleadings conference” aimed at urgently addressing (

a) the distribution and use of the farmland, (

b) the farming activities to be undertaken by each of the parties, and (

c) the distribution of revenues from the farming activities.

[ 21 ] On April 1, 2021, Popescul C.J.Q.B. appointed the case management judge pursuant to Rule 4-5 of The Queen’s Bench Rules [ Rules ]. On April 9, 2021, the parties and their counsel appeared before the judge at a post-pleadings conference. His fiat of that day records that because spring work and seeding was imminent, the “parties need a decision on the procedures to be followed for farming for this year, and they need a decision to be made swiftly”.

The judge took an inventory of the applications before him, and then recorded the agreement of the parties as to certain matters of process: … Through counsel, all parties agreed that I should come to a decision regarding those applications (with particular reference to the issues surrounding farming for 2021) without requiring the formalities of setting a chambers date and hearing further argument. They agreed to the filing of further written submissions with a limited right of reply, and agreed that this occur quickly.

They also all specifically agreed that in addition to the affidavits presently filed I could rely upon the discussions and representations made to me today during the post- pleadings conference. After setting out the agreed upon filing deadlines, the judge stated that he would “then consider the matter in its entirety and come to [his] decision as quickly as possible”. [ 22 ] The process described in the judge’s April 9, 2021 fiat was followed. He issued the Interim Farming Decision on April 19, 2021. 4.

Interim Farming Decision [ 23 ] The judge set out much of the background leading to the Interim Farming Decision. He identified that “[s]pring field work is imminent” (at para 4) and that the parties had asked him “to make an order providing for how this grain farm is [to be] operated for the 2021 to 2022 crop year” (at para 5). He observed that he was not setting out to resolve all disputes among the parties. That, he said, would require a trial.

Instead, he described the fiat as “just trying to keep these parties farming this year and is attempting to preserve the assets and income for all interested parties” (at para 6). He also emphasized that the “fiat is designed only to deal with farming operations and some collateral matters” (at para 12). [ 24 ] The judge reviewed at a high level the evidence before him. He noted the existence of the joint venture agreement, which he observed that the parties had entered voluntarily.

He concluded that the “integrity of the terms of the agreement ought to be preserved as much as possible unless or until a party gives notice to terminate it in accordance with [its] terms” (at para 24). In this regard, he noted that both Julien and Norma had each proposed “to deal with farming this year by simply sweeping away the Joint Venture Agreement in whole or in part”. He did not accept this as the “quest of the Court”.

Instead, he observed that there was an “internal mechanism for termination or modification of the Joint Venture Agreement” and it was not up to him to do this (at para 25). [ 25 ] The judge next reviewed the positions staked by each side to the dispute. In brief, Norma proposed that “she be solely in charge and that she, Gregory and Jordan primarily farm the land for this year”. Julien advocated for “splitting the farm into two segments, with him exclusively working one and everyone else the other”.

Gregory and Jordan suggested that the “parties continue to farm together and that as much of the Joint Venture Agreement be maintained as possible” (at para 42). Each party proposed a mechanism for handling the many financial transactions that the farming operation would require in the coming crop year. [ 26 ] The judge rejected Norma’s suggestion that she be appointed as receiver-manager. He said that it was no more justifiable than appointing Julien to that role and noted that both parties “should consider that it is seldom a good policy to put any fox in charge of any henhouse” (at para 44).

He also stated that he “must also be mindful of the order of Justice Keene, already made, which left interim exclusive possession of the home quarter in the hands of Julien” (at para 46). He concluded his analysis of Norma’s proposal by noting as follows: [47] I do acknowledge that Norma’s proposal has some good features to it. But I am not in a position where I must accept one of these three proposals in its entirety. The proposals contain what they say; they are draft orders with explanations of what each party wants and why he or she wants it.

This does not mean they will get exactly what they seek. [48] I will adopt some of Norma’s proposal in terms of financial transparency, reporting and restrictions. I do agree with her that in the present circumstances if all four of these people are directly involved in making the financial and agricultural decisions, this farm will inevitably descend into chaos and likely insolvency. The evidence before me shows this type of dispute has already occurred and is likely to continue without some strict rules in place. [ 27 ] The judge described Julien’s proposal as “at least as unattractive as Norma’s”.

He rejected Julien’s proposal to split the farm into two parcels as “simply not feasible” (at para 50) and containing “inherent contradictions” (at para 52). After describing some of the detail of Julien’s proposal, he said that if it were to be adopted, there “would remain a family free-for-all with respect to the corporate accounts” (at para 50). He continued by noting the negative impact that Julien’s proposal might have on all of the family members: [51] As well, Julien’s proposal more or less cuts the sons adrift to farm on their own and do as well or as poorly as they can.

This ignores the fact that Julien and Norma, through their own corporation, are fiscally tied to the boys through their guarantees in the range of $4,000,000.00. If the sons’ farming operation fails, that of Julien and Norma either fails or is severely damaged. This reality simply does not appear to have any place within Julien’s plan. [ 28 ] The judge described the joint venture agreement as “the best indication of the parties’ intentions and expectations” (at para 54).

He concluded his analysis of Julien’s proposal by describing it as “singularly unattractive”, “unfair” and stating that it “will not work” (at para 55). [ 29 ] The judge then turned to Gregory and Jordan’s proposal. He described them as having “put forth the most workable of the three proposals” (at para 56). He stated that he saw “clear delineation of each party’s duties regarding farming as a good idea” and concluded that the order they proposed, “with some modifications, should leave no doubt as to what each party must do and must not do” (at para 58).

He noted also that Gregory and Jordan had embraced Julien’s proposal to involve a third party to assist them with making agronomic

decisions. However, the judge did not accept Gregory and Jordan’s proposal involving access to the home quarter, explaining that he was “not prepared to create a worse situation out of one that is already volatile by having the parties walking in and out of the house over which Julien was granted exclusive possession” (at para 59).

Finally, the judge explained that, in the order he was making, he “would also import some of both Norma’s and Julien’s ideas as to finances and fiscal controls into the actual order granted” (at para 60). [ 30 ] The formal order made by the judge, which is stated to apply to both the Family Action and the Boys’ Action, is comprised of 47 paragraphs. It is to be “in force to and including March 31, 2022 unless the term of same is abridged or extended by a further order of this Court”. By its terms, the order: (

a) adds Gregory, Jordan and their corporations as third party respondents to the Family Action; (

b) directs that the stay application be adjourned to be brought back on 21 days’ notice to be given by Julien. However, such notice is not to be given prior to October 31, 2021, unless special leave to the contrary is granted by the judge. It also orders that until the stay application is determined, Gregory and Jordan shall not take any further step in their action unless special leave is obtained; (

c) gives direction as to the appropriate conduct of the parties to each other; (

d) places the farm under the overall direction of Gregory, but does so subject to detailed assignment of responsibilities of each of the parties for the execution of farm-related work, as well as pertaining to the farm’s financial management and reporting; (

e) directs that the “issue of distribution of revenue from the 2021 crop year shall be dealt with under the existing terms of the Joint Venture Agreement”; and (

f) provides that any issues arising with respect to the order’s implementation could be brought back before the judge on an expedited basis. B. Issues [ 31 ] Julien immediately appealed from the Interim Farming Decision to this Court. Julien’s notice of appeal lists 13 grounds. These grounds were further refined in his factum and in oral argument. Although his notice of appeal states that “the whole of the Judgment [ sic ] is appealed”, none of the grounds of appeal challenge the order adding Gregory and Jordan as parties to the Family Action.

I therefore understand this not to be put into issue in this appeal. [ 32 ] The filing of Julien’s notice of appeal served to stay the Interim Farming Decision by operation of Rule 15 of The Court of Appeal Rules .

This stay has been lifted by Richards C.J.S., who also set deadlines allowing for the expedited hearing of this appeal: Beauchamp v Beauchamp (19 May 2021) Regina, CACV3819. [ 33 ] Pursuant to Rule 59 of The Court of Appeal Rules , Julien applied at the hearing of his appeal to introduce five affidavits as “fresh or further evidence on appeal”, being his own affidavit sworn on September 7, 2021, as well as affidavits of Sylvia Lavallee, David Lavallee, Lisa Entem, and Marcellin Entem, each of which was sworn on April 23, 2021.

After the hearing of the appeal, Julien filed a further application for an order to adduce affidavits he swore on September 24, 2021, and October 5, 2021, as well as an affidavit sworn by David Lavallee on September 27, 2021. Julien also applied for an order to reopen the argument on the appeal. [ 34 ] Based on all of this, I have concluded that the outcome of Julien’s appeal is determined by the answers to the following seven questions: (

a) Should the additional evidence be received into this appeal? (

b) Did the judge err by deciding issues that were properly the subject of arbitration under the joint venture agreement? (

c) Did the judge err in his handling of evidence that Gregory was dangerous? (

d) Did the judge err by ordering that the stay application be adjourned? (

e) Did the judge err by making an order other than on terms proposed by either Julien or Norma ? (

f) Did the judge err by altering the terms of possession of the home quarter? (

g) Did the judge err by failing to apply the principles applicable to the grant of mandatory injunctions? C. Analysis 1. Should the additional evidence be received into this appeal? a. Applicable principles [ 35 ] Rule 59 of The Court of Appeal Rules governs the admission of evidence before this Court: Fresh evidence 59

(1) A party desiring to adduce fresh evidence on appeal shall, in accordance with existing law, apply to the court for leave to do so by notice of motion returnable on the date fixed for hearing the appeal.

(2) The notice of motion shall be served on all parties and filed not later than 10 days before the date fixed for hearing the appeal. [36] The principles applicable to the exercise of the discretion to admit evidence under Rule 59 depend on whether the evidenceexisted before the hearing or arose thereafter: Cannon v Saskatchewan (Court of Queen’s Bench), 2021 SKCA 77 at para 46 [Cannon],referring to Maitland v Drozda (1983), (SK CA), 22 Sask R 1 (CA) at para 24; Turbo Resources Ltd. v Gibson (1988), (SK CA), 60 Sask R 221 (CA) at paras 10–11; and Mental Health and Addictions Services v S.B., 2021 SKCA 18 atpara 8, 456 DLR (4th) 587 [S.B.].

All of this was summarized by Ryan-Froslie J.A. in Cannon: [48] In

summary, evidence in existence at the time of a hearing must meet the test set out by the Supreme Court of Canada in R vPalmer, (SCC), [1980] 1 SCR 759 at 775 [Palmer]:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial …

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [49] Evidence that arises after the hearing need not meet the Palmer test, but the Palmer factors are still relevant to the question ofwhether such evidence should be admitted (C.H. v S.F., 2021 SKCA 24 at para 18 [C.H.]).

The evidence must be admissible and relevantto an issue under appeal “in the sense that it bears upon a decisive, or potentially decisive, issue in the proceeding”; it must be credible;and if believed, it must reasonably have the potential, when taken with the other evidence adduced, to have affected the result (C.H. atpara 18). Further, as stated in S.B. at paragraph 8, “it must not violate the principle of public policy that favours finality to litigation”. b.

April 23, 2021 affidavits [37] The Lavallees’ affidavits sworn on April 23, 2021, show that they lease land to New Age, which is now farmed by the jointventure. Their affidavits largely relate to events that occurred before the hearing of the application leading to the Interim FarmingDecision. Both affiants offer their opinion as to Gregory’s character. Mr. Lavallee gives evidence as to a conversation that took place onApril 21, 2021, in which he told Gregory and Jordan that they “are not on the lease” and should get off his land.

Both Lavallee affiantsexplain their decision not to renew this lease with New Age. [38] According to the Entems’ affidavits, they had leased land to Julien up until the end of October 2020. Mr. Entem offers evidenceas to a conversation he had with Norma in February 2021. He also ties the decision not to renew the lease of farmland to this conversationand the unfavourable opinion he has of Gregory. Ms. Entem expresses that she does “not believe it would be good to have Gregory incharge” of the farming operation. [39] There are multiple reasons not to admit these four affidavits as evidence into this appeal.

First, apart from the evidence of Mr.Lavallee relating to his April 21, 2021, conversation with Gregory and Jordan, I see nothing in this evidence that would suggest that itcould not have been adduced before the hearing. Second, the expressions of opinion contained in the affidavits are inadmissible. Third, theevidence is largely irrelevant and certainly is not of the character that, had it been before the Chambers judge, it might have affected theoutcome of the application. c.

Julien’s September 7, 2021 affidavit [40] Julien’s September 7, 2021 affidavit speaks to the operation of the farm after the Interim Farming Decision. The evidence is,therefore, irrelevant to the overarching issue in this appeal, namely, whether the judge erred in making that order.

As explained by LevineJ.A. in Jens v Jens, 2008 BCCA 392 at para 25, 300 DLR (4th) 136 [Jens], with reference to Scott v Scott, 2006 BCCA 504, 61 BCLR(4th) 9, the function of an appeal court “is not to re-try a case, but to determine whether, in making the order under appeal, the trial judgehas made an error that would permit the court to intervene”. The reason for this is that, to succeed, the appellant must show that theoriginal court committed a reviewable error.

Therefore, what has occurred after the order itself is made is generally irrelevant to the issueson the appeal. [41] Julien suggests that his evidence should nonetheless be admitted.

He refers to a passage from Jens, in which the BritishColumbia Court of Appeal recognized the possibility that evidence of events that occurred after the making of an order or grant of ajudgment might be admitted to show that the judge made assumptions about future events or occurrences which turned out to be false: [29] Where the new evidence sought to be admitted is of events that occurred subsequent to the trial or hearing appealed from, theusual rules for the admission of fresh evidence do not apply, and it will be admitted only in rare cases.

Commenting on these exceptionalcircumstances, Lambert J.A. in North Vancouver (District) v. Lunde (1998), (BC CA), 60 B.C.L.R. (3d) 201 (C.A.),stated at paras. 25-26: Of course, this evidence does not meet the usual rules for the introduction of fresh evidence. It was not in existence when the

summarytrial was held and so could not have affected the

summary trial. However, it is sought to be admitted under the rule applied in Cory v.Marsh (1993), (BC CA), 77 B.C.L.R. (2d) 248 (B.C.C.A.) on the basis that the fresh evidence “falsified” the trial[judgment]. In my opinion the rule in Cory v. Marsh applies only in relation to the situation where the trial judge made assumptions about futureevents in order to calculate damages or for some other reason, and then, before an appeal was heard, the trial judge’s assumptions areshown by the course of events to be or to have become incorrect. See also Knutson v.

Farr (1984), (BC CA), 55B.C.L.R. 145 (B.C.C.A.) and Christie (Guardian ad litem of) v. Insurance Corp. of British Columbia (1993), (BC CA),79 B.C.L.R. (2d) 370 (B.C.C.A.). I do not think it is a general rule that evidence of new events which change the factual circumstances is

permitted to be given and permitted to have some kind of retroactive legal applicability requiring this Court to apply different laws todifferent facts than those which confronted the trial judge. (Emphasis in original) [42] I do not see Jens as supporting the admission of Julien’s post-order evidence. The passage he relies on from that caseemphasizes that it is only in “rare cases” that fresh evidence of this sort will be admitted.

The excerpt from North Vancouver (District) vLunde (1998), (BC CA), 60 BCLR (3d) 201 (CA) adopted in Jens contemplates that evidence may be admitted to showthat the original court based its order or judgment on what subsequent events prove to be demonstrably false assumptions. I see no roomfor the admission of the post-order evidence into this appeal on this basis. [43] Julien suggests that the post-order evidence “demonstrates that it is possible and effective to farm separately” (emphasis inoriginal). This is said to be contrary to one of the bases for the Interim Farming Decision.

However, this submission is premised on thisCourt accepting that a party can act in defiance of a court order and then argue that the results of that defiance were positive and thereforethat the order should not have been made. I cannot accept this as a matter of law or policy. [44] In any event, Julien’s evidence does not convince me that the Interim Farming Decision was based on any false assumptionsabout future events or occurrences. Julien’s evidence was hotly contested by the other parties.

Other evidence led the judge to concludethat Julien’s failure to abide by the terms of the Interim Farming Decision was causing overall harm to the farming operation and it wastherefore necessary to vary the arrangements ordered by the Interim Farming Decision. [45] For these reasons, I would not admit the affidavits relating to events that have occurred after the making of the Interim FarmingDecision into this appeal. d.

Post-hearing evidence [46] This then leaves the application by Julien to reopen the hearing in this Court to adduce and make arguments based on affidavitshe swore on September 24, 2021, and October 5, 2021, and an affidavit sworn by Mr. Lavallee on September 27, 2021. These affidavitsrelate to property damage and personal injury said to have been caused by Gregory after the hearing of this appeal. The request to adducethis evidence prompted the filing of response affidavits sworn by Norma and Gregory. These affidavits contradict in many material waysthe evidence of Julien and Mr.

Lavallee. [47] I am prepared to accept that there may be exceptional circumstances in which an appeal may be reopened to receive argument,and even receive additional evidence, while judgment is under reserve. This is not one of them. [48] As I have already explained, this Court’s role in a case of this kind is to review decisions made by the Court of Queen’s Bench.The fundamental question this Court is called to answer is whether the judge committed reviewable error in making the Interim FarmingDecision.

The three affidavits that Julien has brought forward, and the responding affidavits sworn by Norma and Gregory, may berelevant to the question as to whether the Interim Farming Decision should be varied. They may also go to the question as to whether adifferent farming order should be made for the next crop year, should such an order be necessary. However, the place to seek such relief isin the Court of Queen’s Bench, not in this Court. The affidavits say nothing about the question as to whether the judge erred in making theorder that is the subject of this appeal.

The evidence, and the arguments that Julien wishes to advance based on this evidence, are thereforeirrelevant to the issues in this appeal: Ackerman v Ackerman, 2014 SKCA 86 at para 21, [2014] 10 WWR 429. [49] For these reasons, I would not admit the affidavits relating to events that have occurred after the hearing of this appeal norwould I reopen the hearing. 2.

Did the judge err by deciding issues that were properly the subject of arbitration under the jointventure agreement? [50] Although efforts had been taken by Julien to terminate the joint venture agreement, by the time the matter came before thejudge, the parties were proceeding on the basis that the joint venture would continue for the 2021 crop year. It is to be recalled that thejoint venture agreement contains a dispute resolution process requiring that any disputes under it “shall be submitted to arbitration”.Julien’s position is that the Boys’ Action is subject to this requirement.

He brought the stay application pursuant to s. 8(1) of theArbitration Act, which provides as follows: Stay 8(1) Subject to subsection (2), if a party to an arbitration agreement commences a proceeding with respect to a matter to be submitted toarbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitrationagreement, stay the proceeding. [51] The Interim Farming Decision states that it had been “agreed by all [parties] that notwithstanding Julien’s applicationpertaining to the jurisdictional issue (i.e., that the Joint Venture Agreement contains an arbitration clause thus the [Boys’ Action] shouldbe stayed) this conference and this decision could proceed” (at para 9).

Julien argues that the judge misunderstood the waiver he had givenand thereafter also erred by failing to stay the proceedings pursuant to s. 8 of the Arbitration Act. He says in his factum that he “waived hisright to rely on the arbitration clause and to raise his objection to the court’s jurisdiction only to the extent necessary for a division of thefarming operation” (emphasis in original). [52] As I understand it, Julien’s proposition is that his waiver was effective only if the judge agreed to divide the operation of thefarming assets into two functional units.

In my respectful view, Julien’s submission ignores the parties’ agreement as to the scope of theissues the judge was asked to decide and the precise terms of his waiver. [53] The March 24, 2021 all-party letter to Popescul C.J.Q.B. asked for the “appointment of a case management judge, to address

any applications brought with respect to matters not resolved at the post-pleadings conference”. The letter further states that the “anticipated applications may include … control of New Age Farms Ltd., control of the joint venture, interim possession of family property, and interim distribution(

s) of family property”. There is nothing in this letter that suggests that Julien’s agreement to enter into a process that would have as its object the interim possession and management of the family farming assets was subject to a qualification that the process must result in any particular outcome.

As I will later explain, the parties also agreed that the judge should not only make an order allocating the possession, management and control of assets owned directly by Julien and Norma, but also make an order respecting the assets that New Age, as well as Gregory and Jordan and their corporations, contributed to the joint venture. [ 54 ] The breadth of the issues that the parties, including Julien, agreed were to be decided by the case management judge invites a scrutiny of the qualification that he now claims was placed on this agreement.

In this regard, Julien refers to statements contained in two briefs of law filed before the judge, as follows: April 7, 2021 brief: 151. If the Court’s authority to distribute the equipment of New Age Farms on an interim basis is an issue, Julien will waive his reliance on the arbitration clause or to the extent necessary to effect the dividing of the farm operation, but not for an order that Norma or the Boys have the farming operation exclusively. April 13, 2021 brief: 70.

Julien already indicated, and confirmed at the Conference, that he will waive his reliance on the arbitration clause if the Court’s authority to distribute the equipment of New Age Farms on an interim basis is an issue to the extent necessary to effect the dividing of the farm operation. 71.

He will not waive this right for an order that Norma or the Boys have the farming operation exclusively. [ 55 ] The only restriction stated in these passages is that Julien would not waive his right to arbitration if the result was an order that Norma, Gregory and Jordan would “have the farming operation exclusively ” (emphasis added). The order made by the judge respects this limitation.

I therefore cannot agree with Julien’s submission that the judge overstepped the waiver of arbitration rights made by Julien when he rendered the Interim Farming Decision . [ 56 ] Having said this, I would not want to be taken as determining that, by making the Interim Farming Decision , the judge was deciding issues that were subject to the arbitration requirement. The order made pursuant to that decision addresses the interim possession of Norma and Julien’s family property and, along the way, necessarily involves assets that are then operated through the joint venture agreement.

The arbitration agreement is between New Age and the sons’ corporations; neither Julien nor Norma is a party to it. Gregory and Jordan argue that, for this reason, that agreement’s arbitration requirement cannot constitute an impediment to the court’s ability to determine issues relating to possession and ultimate distribution of family property. Ultimately, it is not necessary for me to decide if the arbitration requirement in the joint venture agreement applies.

As I have explained, whatever the ambit of the arbitration clause, Julien waived its application. [ 57 ] In conclusion, I see no error by the judge in proceeding to make an order in the face of the arbitration requirement contained in the joint venture agreement. 3. Did the judge err in his handling of evidence that Gregory was dangerous ? [ 58 ] One of the justifications Julien offered to the judge as a reason to split the farm into two operations was that Gregory presented a danger to him. Julien now argues that the judge mishandled evidence in relation to this issue. He makes two basic points.

The first is that the judge ignored or overlooked material evidence. The second is that the judge erred in making an order in the face of conflicting evidence. [ 59 ] I will deal with these arguments in order. Before doing so, I would take note of the standard of review that is applicable in relation to a review of an order such as that at issue here. [ 60 ] Decisions relating to division of family property are discretionary in nature and attract deference: Tyacke v Tyacke , 2021 SKCA 80 at para 45 . Orders that relate to the interim possession of those assets are similarly discretionary in nature.

In such circumstances, findings of fact are assessed on the standard of palpable and overriding error. Absent such an error, an appeal court will only intervene if the judge has committed an error in principle, or if there has been an abuse of discretion such as disregarding a material fact, failing to act judicially, or if the result is so plainly wrong as to amount to an injustice: Tyacke at paras 14–15 , and the numerous authorities cited therein. a.

Did the judge ignore or overlook material evidence? [ 61 ] Julien’s first argument is that, in making an order that resulted in the farm continuing as a single operation under Gregory’s overall direction, the judge “completely disregarded” the evidence that Gregory presented a danger to him and others. The evidence the judge is said to have overlooked includes Julien’s attestations that Gregory: (

a) suffers from bipolar disorder and had threatened to kill himself or cause other self-harm on several occasions; (

b) had made various statements that amounted to threats to kill Julien, including that Gregory once said he knew how Julien would die, “or something to that effect”, and on another had said “I can kill you”; and (

c) had punched Julien, had once chased him with an iron bar and on another occasion had attempted to hit Julien with an extension cord. [ 62 ] In an appeal of this nature, this Court’s role is not to engage in a reweighing or reconsideration of the evidence. Our role is to evaluate whether there is a basis to conclude that the judge either failed to consider the evidence Julien points to, misunderstood it or mischaracterized it in a way that could be said to have affected his decision.

In this regard, I am satisfied from my review of the Interim Farming Decision that the judge was alive to Julien’s concern that he faced the risk of harm if he was forced into farming alongside his sons. He specifically stated in this regard:

[30] Julien felt this was workable because the parties would have to farm ‘‘together yet apart”. He made it very clear he did not think he could actively farm with his sons, not even for one more year. He has made a number of contested allegations and says he believes he will come to bodily harm or death if he has to farm with his sons through the Joint Venture in 2021. [ 63 ] The judge did not catalogue all the evidence before him – either that offered by Julien or that offered in response.

However, paragraph 30 of the Interim Farming Decision satisfies me that the judge considered the evidence Julien contends was ignored. [ 64 ] Any remaining validity to Julien’s argument under this head reduces to whether the Interim Farming Decision should be set aside because of an insufficiency of reasons. However, he does not present argument on this basis. Moreover, I would see no reason to interfere with the judgment for this reason. The Interim Farming Decision is brief. However, this is understandable given the exigent circumstances under which it was delivered.

Notwithstanding the brevity of the decision, it allows for “meaningful appellate review”, which is the standard against which they are to be tested ( Scobie v Thiessen , 2021 SKCA 47 at para 38 , 54 RFL (8th) 256, citing R v Sheppard , 2002 SCC 26 at para 28 , [2002] 1 SCR 869). In this regard, it is important to observe that much of the evidence Julien alleges was overlooked by the judge was contested. For example, Gregory explained that Julien’s suggestion that he had threatened self-harm really referred to a statement that Julien’s attitude toward him “was making me want to kill myself”.

He denies that he said he wanted to kill Julien and stated that he has “no intentions of doing so”. Norma gave evidence that she had “not observed any violence, or threats of violence, by [herself], Gregory or Jordan which could reasonably ground Julien’s claimed fear for his physical safety and wellbeing”. Importantly, the judge dealt with the conflicting evidence before him on this issue, as I will next explain. b.

Did the judge err in making an order in the face of conflicting evidence? [ 65 ] Julien also argues that the judge erred by ignoring contradictory affidavit evidence “pertain[ing] to the safety of Julien”. However, there is no universal rule that a decision may not be made in Chambers in the face of conflicting evidence. This was recognized in T.C. v A.E. , 2021 SKCA 79 at paras 31–33 .

What is important is how a judge making a decision in such a circumstance accounts for the conflict in the evidence. [ 66 ] In this case, the judge was cognizant of the conflict in the evidence on various issues, including relating to the allegation that Julien should not be called on to farm with Gregory. At the outset, the judge noted that the Interim Farming Decision “does not … resolve all the disputes among the parties” (at para 6, emphasis in original).

In paragraph 30, which I have earlier quoted, he again referred to the contest in the evidence on the point as to the danger, if any, Gregory posed to Julien. There is nothing on the record that would suggest that the parties looked to the judge to determine this issue. Such a suggestion would defy the exigent circumstances under which the order was made. Moreover, the judge did not purport to make a determination on this issue. [ 67 ] What the Interim Farming Decision discloses is that the judge set out to structure an order intended to best balance multiple competing objectives.

These included the urgent need for a farming plan, the need for a plan that appropriately balanced the rights of the parties in relation to the family assets and the need to manage the many different risks that would be inherent in putting in place any arrangement in the face of the conflicting evidence. I would give two examples to illustrate this latter point. [ 68 ] A first example as to how the judge attempted to manage the risk of conflict relates to the direction given relating to the home quarter. There was significant dispute surrounding the home quarter.

Gregory and Jordan proposed that they “shall have access to, and be allowed the use of, all shops and buildings on the home quarter, as well as everything in them, with the exception of the residence”. As I have previously noted, the judge explained that, in his view, this would “create a worse situation out of one that is already volatile”. However, he also recognized that there “may be some instances where equipment or a shop needs to be used”, but that as “much as possible this should be facilitated by the hired men retained by Julien and the boys” (at para 59).

Reflecting these reasons, the formal order provides as follows: 9. Julien shall continue to have interim exclusive possession of the home quarter (NE 36-07-15 W3) on the terms and conditions set out herein: a. Julien shall forthwith remove any barricades or other impediments to access to the yard or any roadway or building leading to or on the home quarter. b.

No other party shall attend at or near the home quarter for any reason whatsoever without firstly communicating the reason and timing of doing so to Julien, and providing sufficient notice for him to vacate the home quarter for a short period in the event he wishes to do so and/or arrange for someone else to be present to monitor what occurs on the home quarter. c.

In any event, should any party other than Julien need to access the home quarter or any equipment or tools or other fanning items located thereon, they must endeavour to use the services of a hired hand to attend at the home quarter instead of the party himself or herself. Likewise, Julien shall endeavour to have his own hired hand present instead of attending personally. d. No party other than Julien shall enter the dwelling house on the home quarter except in the case of serious emergency due to injury or illness. No other party shall enter the house only to use the washroom or kitchen. e.

Within ten (10) days of the date of this order Julien must return to the home quarter all family property and all Joint Venture property including but not limited to: farming inputs, tools, vehicles, equipment, keys and components to any vehicles or equipment. [ 69 ] Second, although the judge directed that there be a single farming operation, he also ordered that there be a division of the hired help with an object of reducing the sources of conflict between the parties. This is seen in the following paragraph in the formal order: 17.

In all instances unless impossible to do so, Julien shall be assisted by hired hand Frank Neufeld and Gregory and/or Jordan shall be assisted by hired hand Kyle Peran. Every attempt will be made not to cross-use these hired hands. [ 70 ] In conclusion on this issue, I cannot read the Interim Farming Decision as ignoring evidence. Further, there is no basis to conclude that the judge made an inappropriate order in the face of conflicting evidence. Instead, as I see it, in the face of highly

contentious evidence, the judge designed an order to minimize the possibility of conflict while ensuring that necessary farming operations could proceed. The crafting of such an order inevitably involves a significant measure of discretion. I see no basis for this Court to intervene in such circumstance. c. Conclusion regarding the judge’s handling of the evidence [ 71 ] The judge did not err in his handling of evidence that Gregory was dangerous. 4.

Did the judge err by ordering that the stay application be adjourned ? [ 72 ] This ground of appeal arises from the direction given by the judge that the stay application be adjourned. The precise terms of the order made on this point are as follows: 6. Julien’s application in QBG 16 of 2021, Swift Current, for an order granting a stay of proceedings until arbitration can be held pursuant to the terms of the Joint Venture Agreement dated July 18, 2017 is hereby adjourned sine die on the following terms and conditions: a.

That application may be brought back before the Court by any party on 21 days’ written notice to the other parties, provided such notice is not given between the date hereof and October 31, 2021 unless special leave to the contrary is granted by the case management judge. b. Such special leave may be sought on a without notice application made to the case management judge. c .

Until Julien’s arbitration application is determined the plaintiffs in QBG 16 of 2021 shall not take any further steps in that action unless special leave to the contrary is granted by the case management judge, which leave may be sought in the same manner as set out above. [ 73 ] Julien raises two objections to this order. First, he brings forward an issue of procedural fairness. He argues that natural justice demands a party must be given adequate notice before any order is made that affects that person’s interests.

He says that, in this case, the judge “acted ex mero motu , no application was before him to adjourn, he did not raise the issue and invite the parties to make submissions on the issue”. Second, Julien advances the proposition that by dealing with his stay application in this way, the judge “effectively already decided the application”. I see no merit in either argument. [ 74 ] I reject out of hand the suggestion that the absence of a formal adjournment application has significance.

Julien offers no authority to suggest that a formal application to adjourn must be served by a respondent before an applicant’s motion can be put over to another day. His suggestion that this was required is contrary to all accepted practice in this province, where adjournments are routinely granted based on the oral request of a respondent made on the return of a notice of application. [ 75 ] Further, there is no need to define the boundaries of a court’s ability to deal with matters of procedure on its own motion in order to decide this ground of appeal.

I see nothing on the record to suggest that the judge struck out on his own when he ordered the adjournment of Julien’s stay application. To the contrary, he explained that the request for the adjournment originated with Gregory and Jordan, and then offered his reasons for acceding to that request, when he stated as follows: [61] I do agree with Gregory and Jordan that the jurisdictional application of Julien in QBG 16 of 2021 should be deferred. It will be a significant distraction and drain on resources when there is a crop to put in the ground. Right now, the parties need to concentrate on farming.

However, I would add certain terms such that the civil action cannot be advanced without firstly having the arbitration/jurisdiction application adjudicated, since it goes to jurisdiction. [ 76 ] I therefore see no basis whatsoever for Julien’s argument that the judge acted ex mero motu or otherwise in breach of the rights to a fair procedure when he ordered that the stay application be adjourned on terms. [ 77 ] Similarly, I see no merit in Julien’s argument that, by adjourning the stay application, the judge “effectively already decided the application”.

To the contrary, the judge was careful to preserve Julien’s right to have the stay issue decided on its merits. As paragraph 61 of the Interim Farming Decision makes clear, the order ensures that the “civil action cannot be advanced without firstly having the arbitration/jurisdiction application adjudicated, since it goes to jurisdiction”.

Although the judge directed that notice to return the application not be given prior to October 31, 2021, he provided in his order that Julien may seek an earlier date by seeking special leave, which “may be sought on a without notice application to the judge” (at para 6(b)). [ 78 ] Finally, I would reject any suggestion that this Court interfere with the specific terms imposed by the judge relating to the adjournment. An order of this nature is procedural in nature and attracts deference. This is so for all procedural orders.

It is emphatically so where litigation is case managed: Jorgenson v ASL Paving Ltd ., 2007 SKCA 143 at paras 26–27 , 302 Sask R 281 [ Jorgenson ] . I will return to discuss the scope of the judge’s discretion over matters of procedure in the context of the next ground of appeal. [ 79 ] For all these reasons, I see no merit to the suggestion that the judge erred by ordering that the stay application be adjourned. 5.

Did the judge err by making an order other than on terms proposed by either Julien or Norma ? [ 80 ] This ground of appeal is centered on the fact that, in establishing the terms governing the farming assets, the judge chose not to follow the proposal of either Julien or Norma. Instead, the judge made an order more aligned with the order recommended to him by Gregory and Jordan. The argument is that it was not open to the judge to have done this. [ 81 ] In oral argument, Julien focused on specific paragraphs from the Interim Farming Decision as being subject to challenge under this head.

However, I take his point to be a more general one. It is helpful, therefore, to review the procedure that was followed leading to that order, before turning to the specific paragraphs from the order made by Interim Farming Decision that Julien points to as most manifesting this alleged error. [ 82 ] The judge was appointed as a case management judge by the Chief Justice of the Court of Queen’s Bench pursuant to Rule 4-6

of the Rules . In this province, the “case management process is a considerable privilege afforded to parties engaged in lengthy and complicated litigation” ( Jorgenson at para 26 ). Case management gives the parties to litigation access to a judge who will steward the litigation forward. The Alberta Court of Appeal has stated that the “essence of case management is judicial supervision of the litigation process in order to provide coherence, predictability and stability to that process” ( Balogun v Pandher , 2010 ABCA 40 at para 9 , 474 AR 258 ).

It is also inherent in this that, when litigation is case managed, the usual procedures governing civil proceedings may, and indeed frequently are, modified to allow the action to move ahead in a fair, efficient and effective manner. [ 83 ] Rule 4-7 outlines the broad and highly discretionary authority of a judge to craft a procedural course for litigation under case management: Authority of the case management judge 4-7

(1) A case management judge, or, if the circumstances require, any other judge, may: (

a) order that steps be taken by the parties to identify, simplify or clarify the real issues in dispute; (

b) set or adjust dates by which a stage or a step in the action is expected to be complete and order the parties to comply with the dates; (

c) make an order to facilitate an application, proceeding, questioning or pre-trial proceeding; (

d) make an order to promote the fair and efficient resolution of the action by trial; (

e) facilitate efforts the parties may be willing to take towards the efficient resolution of the action or any issue in the action through negotiation or a dispute resolution process other than trial; and (

f) make any procedural order that the judge considers necessary.

(2) Unless the Chief Justice or the case management judge directs otherwise or these rules provide otherwise, the case management judge shall hear every application filed with respect to the action for which the case management judge is appointed. [ 84 ] The powers described in Rule 4-7 “supplement the general authority of the Court to make orders and grant remedies, as spelled out in the Foundational Rules in

Part 1” ( Yashcheshen v Canada (Attorney General ), 2021 SKCA 116 at para 40 [ Yashcheshen ]). Relevant to this appeal, and as I will discuss to the appeal from the Variation Decision , are Rules 1-4 and 1-5, which read in part as follows: General authority of the Court to provide remedies 1-4

(1) The Court may do either or both of the following: (

a) give any relief or remedy described or referred to in The Queen’s Bench Act, 1998 ; (

b) give any relief or remedy described or referred to in or under these rules or any enactment.

(2) The Court may grant a remedy whether or not it is claimed or sought in an action on providing the parties with: (

a) a notice of its intention to grant a remedy; and (

b) an opportunity to respond.

(3) Nothing in these rules prevents or is to be interpreted as preventing the Court, as a superior court, from exercising its inherent jurisdiction. Orders respecting practice or procedure 1-5

(1) To implement and advance the purpose and intention of these rules described in rule 1-3, the Court may, subject to any specific provision of these rules, make any order with respect to practice or procedure, or both, in an action, application or proceeding before the Court.

(2) Without limiting subrule (1), and in addition to any specific authority the Court has pursuant to these rules, the Court may do one or more of the following: (

a) grant, refuse or dismiss an application or proceeding; (

b) set aside any process exercised or purportedly exercised pursuant to these rules that is: (

i) contrary to law; (ii) an abuse of process; or (iii) for an improper purpose; (

c) give orders or directions or make a ruling with respect to an action, application or proceeding or a related matter; (

d) make a ruling with respect to how or if these rules apply in particular circumstances or to the operation, practice or procedure pursuant to the rules; (

e) impose terms, conditions and time limits;

(

f) give consent, permission or approval; (

g) make proposals, provide guidance, make suggestions and make recommendations; (

h) adjourn or stay all or any part of an action, application or proceeding, extend the time for doing anything in the proceeding or stay theeffect of a judgment or order; (

i) determine whether a judge is or is not seized with an action, application or proceeding. … [85] The procedural discretion conferred by these rules underpins what is expected of a case management judge. Brought into thecircumstances of this case, the parties needed an urgent decision. Application of the usual rules of civil procedure was not only impracticalbut would likely have caused irreparable damage – something that all parties wanted to avoid.

Rule 4-7 gave the judge broad discretion tocraft a procedure that was suitable for these exigent circumstances, including the discretion to make “any procedural order that the judgeconsiders necessary” (Rule 4-7(1)(f)). [86] I would accept without reservation the proposition that case management judges must adopt procedurally fair processes. Aspart of this, I have no difficulty in agreeing that, as a matter of general principle, parties must be given adequate notice of what is to beheard and decided.

Julien cited many authorities that establish this bedrock rule, and give it meaning in particular contexts, includingConsolidated-Bathurst Packaging Ltd. v International Woodworkers of America, Local 2-69, (SCC), [1990] 1 SCR 282;Long v Van Burgsteden, 2014 SKCA 115, 378 DLR (4th) 562; and Rodaro v Royal Bank of Canada (2002), (ON CA),59 OR (3d) 74 (CA). These principles are also discussed at length in Yashcheshen. In that case, this Court found that a self-representedlitigant did not have sufficient notice of a determinative issue and a decision was set aside on that basis.

A further example of this principleis provided by S.B., which involved an order requiring the funding for family visits to a person subject to a long-term detention order.Justice Ryan-Froslie found there to be a breach of procedural fairness because the judge had “raised and determined the funding issue onhis own motion without notice to any of the parties, and without giving them an opportunity to be heard” (at para 75). [87] In this case, the process followed by the judge was agreed to by the parties.

The precise form of relief that was being requestedby each party evolved in the context of the proceedings before the judge. However, the parties were all aware that the judge was todetermine the terms and conditions pursuant to which the family farm assets would be deployed in the coming crop year. Moreover, theyhad notice of the specific orders that were under consideration by the judge. In this regard, the judge invited all parties to present the formof order that they thought should be made. Each side was afforded the opportunity to file reply material responding to the requestsembedded in those draft orders.

The judge based his order on those drafts and the submissions he received from the parties. [88] In short, the judge did not breach of the duty of procedural fairness. This reality renders completely distinguishable the case lawthat was cited by Julien. [89] In making these observations, I would not wish to be understood as suggesting that, when making an order or granting ajudgment, a judge is limited to the remedial options presented by the parties. Parties frequently take positions based on their view as tohow the judge may find the facts or the law.

It regularly happens that judges accept some, none or all the positions that parties take in acontested proceeding on matters of fact or the law. Judges must be able to craft a judgment or order that comports with the evidence andlaw as they find it to be. No authority that I am aware of says that a judge is restricted to making an order precisely along the lines of whatone party or the other has suggested if the rules governing a proper process have been followed. [90] The lack of merit to this ground of appeal is made more evident when Julien’s specific objections to the order made areconsidered.

In oral argument, he focused his objections on four paragraphs of the order. [91] Julien objects to paragraphs 10 and 16 of the formal order that assign a consulting role to a third party agrologist. Paragraph 10directs that farming decisions during the term of the order “shall be made by Gregory in consultation with Reg Wilson, a local Co-op AgRep. Gregory shall consult and discuss all his farming decisions with Reg Wilson before implementing same”. Paragraph 16 of the orderdirects that farming tasks “shall be assigned by Gregory in consultation with Reg Wilson or his replacement”.

Julien argues that no ordershould have been made appointing Mr. Wilson into this role since none of the notices of application requested this relief. [92] Julien’s objection to the naming of Mr. Wilson into this role lacks any currency because it was Julien who suggested theinvolvement of a third party, although he proposed that a different person be named.

As the judge noted, “Gregory and Jordan readilyaccepted the idea of a third party to assist them in making agronomic decisions, and in fact accepted Julien’s suggestion as to whom thatmight be even in the face of rejection [by Julien] of their proposals in that regard” (Interim Farming Decision at para 58). Although therewas some indication later that Mr.

Wilson might not step into this role, this eventuality was contemplated by the judge, who provided inparagraph 11 of the formal order that “Reg Wilson may be replaced as the consultant should he not consent to act as same or should he nolonger wish to carry on in that capacity, or for any other reason the Court deems just and reasonable”. [93] Julien also objects to paragraphs 27 and 32 of the issued order. Paragraph 27 directs that Julien is to sign a conflict of interestwaiver to permit taxes to be filed. Paragraph 32 requires Julien to take steps to secure reissuance of a rebate cheque from a chemicalsupplier.

He argues that neither item of relief was requested in Norma’s notice of application. However, these issues arise clearly from theaffidavit record. As well, these aspects of the order are based on the draft order submitted by Gregory and Jordan. Julien therefore hadnotice that these orders were being requested, and he had an opportunity to offer evidence and submissions in relation to these proposedorders. As I will explain, there is a different problem with paragraph 27 of the order.

However, there is no foundation to the suggestionthat paragraphs 27 and 32 are the product of the judge acting on his own initiative or otherwise following an unfair process. [94] In conclusion, I see no merit to the argument that the judge erred by making an order that was not requested by any party or byfollowing a procedurally unfair process. 6. Did the judge err by altering the terms of possession of the home quarter?

[ 95 ] It is to be recalled that, pursuant to the Keene Order made on December 16, 2020, Julien was given exclusive interim possession of the home quarter, including the family home and other buildings situated on it. Paragraph 9 of the order made by the judge, which I have earlier quoted, provides that “Julien shall continue to have interim exclusive possession of the home quarter (NE 36-07-15 W3) on the terms and conditions set out herein”. Julien argues that by allowing any form of access to the home quarter, the judge impermissibly changed the Keene Order.

He describes the judge as having “overruled” or, alternatively, impermissibly varied the Keene Order , absent evidence of a material change in circumstances or an application to vary that order. [ 96 ] For their part, the respondents deny that the order made by the Interim Farming Decision varied the Keene Order .

For example, Norma suggests in her factum that it “confirms [Julien’s] exclusive retention of the Home Quarter, and simply elaborates on the process to take in the event another party requires access to the Home Quarter in the event of an emergency or to ensure the proper operation of the farming endeavor”.

The respondents also argue that, if the Interim Farming Decision is seen to vary the Keene Order , the judge made no error in doing so, since there was a motion before him to grant this relief and a proper evidentiary base. [ 97 ] I would first consider the question as to whether the Interim Farming Decision varied the Keene Order. [ 98 ] Although it is brief, the Keene Order figured prominently in the arguments made by the parties to the judge.

After dealing with several preliminary matters, one of the first facts the judge identified was that, after their separation, Julien and Norma had continued to live in the family home “until an order was made by Justice Keene in December 2020 granting exclusive possession of the home quarter to Julien” (at para 14). At paragraph 46, the judge stated that he “must also be mindful of the order of Justice Keene, already made, which left interim exclusive possession of the home quarter in the hands of Julien”.

He added that he would “need convincing grounds to vary an order already made by a fellow judge regarding the same piece of property” (at para 46). The other direct and implicit references to the Keene Order make clear that the judge was aware of it and its terms. [ 99 ] If read in isolation, the statement made by the judge at paragraph 46 of the Interim Farming Decision , that he would “need convincing” to vary the Keene Order , might suggest that he did not intend to vary it. However, I do not understand the Interim Farming Decision in this way.

Prior to offering the comment relied on by Julien, the judge had explained that, under the Keene Order , Julien enjoyed exclusive possession of the home quarter. Paragraph 9 of the judge’s formal order directed that Julien shall “continue” to have exclusive possession, but “on the terms and conditions set out” in that paragraph. [ 100 ] Paragraph 59 of the Interim Farming Decision provides the judge’s explanation for why he was altering, albeit only to a limited extent, the right of exclusive possession that Keene J. had earlier granted. In it, the judge addressed the “use of the home quarter and yardsite”.

He explained that there “may be some instances where equipment or a shop needs to be used”. He directed that “[a]s much as possible this should be facilitated by the hired men retained by Julien and the boys”. The latter direction makes clear that the judge envisaged that there would be instances where this was not possible and access by Gregory and Jordan would be appropriate. Any doubt about this is put to rest by the terms of the formal order, which specify how parties other than Julien could go about accessing the home quarter. [ 101 ]

Section 8 of the FPA provided authority for the case management judge to vary the Keene Order , if the required conditions for doing so were met: Variation, discharge or suspension of order 8

(1) Where a court is satisfied that there has been a material change in circumstances, the court may discharge, vary or suspend an order made: (

a) pursuant to this Part; or (

b) with respect to the possession of a family home or household goods by any court before the coming into force of this Act or The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2) .

(2) An application for an order pursuant to subsection (1) may be made by: (

a) a person named in an order mentioned in subsection (1); (

b) a person against whose estate or interest the order was made; or (

c) the personal representative of a person mentioned in clause (

a) or (b). [ 102 ] I am satisfied that the judge ordered a variation of the Keene Order based on a material change in circumstances. This conclusion is bolstered by the fact that Keene J. had explicitly identified, but left for later determination, the need to accommodate access by Gregory and Jordan to the home quarter. Their need for access was made more acute by actions taken by Julien in the period after the Keene Order was issued. [ 103 ] The judge identified the Keene Order to be “limited in scope” ( Interim Farming Decision at para 15).

I understand this comment to have been made with reference to the fact that Keene J. had recognized that his fiat did not sort out the rights of access that might need to be granted to Gregory and Jordan. In the second paragraph of his fiat, Keene J. had pointed out that Norma and Julien had “two adult sons [who] are quite involved in the farm operation”, and that a “joint venture has been in place between the parties and their sons to operate the farm”.

Later, when providing his reasons for granting Julien exclusive possession of the home quarter, Keene J. contemplated that a variation of his order may need to be made to accommodate Gregory and Jordan’s interests, and the fact that the home quarter was integral to the operation of the joint venture: Mr. Beauchamp has been farming throughout their marriage and while Ms. Beauchamp and her two sons say he does not do much on the farm; I find that it is likely an understatement. Mr. Neufeld suggests otherwise and the fact is that Ms.

Beauchamp teaches full time in Shaunavon and would therefore not have as much time to farm as Mr. Beauchamp. This is not to minimize her involvement. I am sure that she has done a lot at the farm but on balance I see that Mr. Beauchamp has been doing the farming full time. The role of Gregory and

Jordan complicates this because they are integral to the operation but that will all have to be sorted out in due course. However, for [the]interim I find that Mr. Beauchamp should be granted exclusive possession of the farm family home and some of the household goods. Heshould also have exclusive possession of the home quarter. This is because Ms. Beauchamp has better options for her alternativeaccommodation as set out above and it is also important that Mr. Beauchamp be able to actively maintain the family fanning operation bybeing on site.

I also draw some comfort in the wording of sec. 8 of The Family Property Act that allows for a variation of this order ifrequired. (Emphasis added) [104] Accentuating the need to sort out the implications associated with the fact that the home quarter is integral to the operation of thejoint venture were actions taken by Julien after the Keene Order was made. Julien had barricaded access to the farm’s shop. He had takenjoint farming equipment and tools utilized by the joint venture and removed other required farming items.

The evidence of this providedthe context for several of the conditions imposed by the judge in his order to Julien’s continued right of exclusive possession of the homequarter, including that: (

a) Julien “shall forthwith remove any barricades or other impediments to access to the yard or any roadway orbuilding leading to or on the home quarter” (Interim Farming Decision at para 9(a)); (

b) the directions as to how parties other than Julienshould “access the home quarter or any equipment or tools or other farming items located thereon” (at para 9(c)); and (

c) the direction thatJulien “must return to the home quarter all family property and all Joint Venture property including but not limited to: farming inputs,tools, vehicles, equipment, keys and other components to any vehicles or equipment” (at para 9(e)). [105] As is apparent, the reasons given by the judge relating to the home quarter are brief and therefore not without difficulty in theirinterpretation.

However, it is in this context that the following explanation he gave to the reader of his reasons finds most significance: [41] As noted at the outset, I would have preferred more time to conduct and set forth in this decision a detailed analysis. That hassimply not been possible. Time is not anyone’s friend in this situation. The perfect can be the enemy of the good. However, each interestedparty needs to understand why I have ruled as I have done, so this fiat will provide an explanation of the strengths and weaknesses of eachparty’s position.

Reading this ruling as a whole will explain the rationale to the parties. [106] Considering all of this, I am satisfied that the judge deliberately varied the Keene Order when he directed in paragraph 9 of hisformal order that “Julien shall continue to have interim exclusive possession of the home quarter (NE 36-07-15 W3) on the terms andconditions set out herein”. [107] Julien’s remaining argument under this head reduces to a procedural objection that, absent an application to vary the KeeneOrder, the judge had no authority to make an order that had this effect.

This submission overlooks that, in her notice of application datedMarch 18, 2021, Norma identified that Julien had been “awarded interim exclusive possession of the Family Home Quarter early in theproceedings”. Nonetheless, she requested interim exclusive possession of the home quarter. Her notice of application can be understood inno other way than as a request to vary the earlier order. I would add, for completeness, that in their submissions before the judge, Gregoryand Jordan sought access to the home quarter, including limited access to the house itself.

There can be no doubt that the parties hadplaced the question as to whether the existing order should be varied in play. Julien’s procedural objection therefore is devoid of merit. [108] In conclusion, I see no error in the decision of the judge in altering the terms of possession of the home quarter. 7.

Did the judge err by failing to apply the principles applicable to the grant of mandatoryinjunctions? [109] This ground of appeal is centered on paragraph 27 of the formal order, which directs Julien to “sign and return the conflict-of-interest waiver so that taxes can be filed”, and paragraphs 10, 12, 16, 20, 21 and 22, which direct how aspects of the farming operation“shall be conducted”. Julien’s submission is that each of these orders amount to a mandatory injunction that compels the performance of apositive act.

He raises both procedural and substantive reasons why such allegedly mandatory injunctions should not have been granted. [110] Julien’s procedural argument is that a mandatory injunction may only be granted if a request for a permanent injunction is part ofthe underlying action and he notes that this is not the case here. More substantively, he argues that the jurisprudence establishing therequirements for the grant of injunctive relief is applicable. These requirements include the assessment of the strength of the case, theadequacy of damages as a remedy, the existence of irreparable

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