Parsons v Burkart, 2021 SKCA 2

Court of Appeal for Saskatchewan Docket: CACV3687 Citation: Parsons v Burkart , 2021 SKCA 2 Date: 2021-01-12 Between: Chris Parsons Appellant (Petitioner) And Marsha Anne Burkart Respondent (Respondent) Before: Jackson, Ottenbreit and Caldwell JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell On appeal from: FLD 314 of 2019, Regina Appeal heard: December 9, 2020 Counsel: Madlin Lucyk for the Appellant Alexander Deacon for the Respondent Ottenbreit J.A. I.

Introduction [ 1 ] Chris Parsons appeals the interim order of the Court of Queen’s Bench Chambers judge dated July 29, 2020, which grants exclusive possession of the parties’ family home in Regina to Marsha Anne Burkart for the purpose of listing it for sale: Parsons v Burkart (29 July 2020) Regina, FLD 314 of 2019 (Sask QB) [ Decision ]. [ 2 ] For the reasons hereinafter set forth, the appeal is allowed. II. Facts and Background [ 3 ] The parties cohabited for over nine years before separating in September 2019. They have two children aged nine and four.

The parties purchased the family home in east Regina in 2016 where they lived together, along with Mr. Parsons’ mother, until Ms. Burkart moved out. Mr. Parsons and his mother continue to live in the home. The home is registered in Ms. Burkart’s name and is subject to a mortgage also in her sole name. It is the major asset of the relationship. The home is located four blocks from the school the eldest child attends. [ 4 ] Mr. Parsons petitioned for division of family property and for exclusive possession of the home. In January of 2020, Ms.

Burkart applied for relief with respect to the parenting and maintenance of the children and for exclusive possession of the family home for the purposes of listing it for sale. [ 5 ] At the time of Ms. Burkart’s application, the home was occupied by Mr. Parsons and his mother. Ms. Burkart’s application for relief related to the children and for exclusive possession of the home was determined by a Chambers judge who rendered a decision dated March 12, 2020. That Chambers judge made an order in respect of the children but declined to order the sale of the family home and instead gave Mr.

Parsons exclusive possession of it until further order, subject to the condition that Mr. Parsons would continue to promptly pay all expenses and payments related to the home, including mortgage payments, utility payments and insurance payments. Moreover, should he fail to do that, the order provided that Ms. Burkart had leave to renew her application to have the home ordered to be sold. [ 6 ] During the summer of 2020, Mr. Parsons and his mother continued to occupy the family home but failed to keep the payments ordered by the Chambers judge in March up to date. [ 7 ] In July of 2020, Ms.

Burkart renewed her application for exclusive possession of the home for the purpose of listing it for sale. Both parties filed further affidavit material. Mr. Parsons indicated that he had fallen behind in payments related to the house because his delivery and moving business had been decimated by COVID-19. However, prior to the renewed application being heard by the Chambers judge, he brought all payments up to date. [ 8 ] The Chambers judge determined the application in Ms. Burkart’s favour.

The Decision took the form of a short oral fiat which read as follows: The court is going to grant the application with one modification, Justice Scherman’s order was clear in giving Mr. Parsons exclusive possession was subject to a condition that he promptly make all mortgage payments, all utility payments and all insurance and expenses, and should he fail to do so the respondent had leave to renew the application, which has been done. The court does take judicial notice of the difficulties caused by COVID-19, but the court also has read the affidavits and that from Mr. Parsons where he gives reasons or

excuses as to why he thought payments were being made, but the court does find it very troubling that in particular the insurance was notbeing paid. These are obviously very important matters since the home is destroyed and .there is no insurance, there is enormous losssince most of the value of these property’s is in the building, and though ·the letter was sent to 1330, Wascana Heights, so draft order onfile is granted except that the court thinks its duly harsh to order Mr. Parsons to vacate the family home immediately, especially if counselsays his mother is living there as well.

So the court is going to order that the order be changed, so the petitioner Chris Parsons shall vacatethe family home by September 8th, that is the Tuesday immediately following the Labour Day long weekend, to allow him a clear monthplus some extra days to make alternate living arrangements, and the court would sense the application successful, the costs are awarded inthe fixed amount at $500.00. III. Analysis [9] Mr. Parsons argues that the Chambers judge erred in three ways in making the order that Ms. Burkart have exclusivepossession of the home.

He submits first that the Chambers judge failed to consider the detrimental impact of COVID-19 on his deliveryand moving company business and his ability to make the payments ordered by the Chambers judge in March. [10] He argues second that the Chambers judge failed to consider he was up to date with the mortgage and insurance payments atthe time the application was heard. [11] Last, he submits that an interim disposition of the home should not have been made in circumstances where it is substantiallythe entire net family estate. [12] There is no merit to Mr. Parsons’ first and second arguments.

With respect to the first, the Chambers judge took judicial noticeof COVID-19 and it may be presumed he had reviewed Mr. Parsons’ affidavit material to the effect that he was not able to promptly makethe payments ordered because of COVID-19’s effect on his business. With respect to the second, I am confident that the Chambers judgewas fully aware of the evidence that the payments were up to date because he states he has read Mr. Parsons’ affidavit. [13] I turn now to Mr. Parsons’ last submission.

This engages the standard of review, i.e., whether the Chambers judge improperlyexercised his discretion to order interim possession of the family home to Ms. Burkart for the purpose of sale. [14] It is common ground the Decision reflected an exercise by the Chambers judge of his discretion.

Discretionary decisions are tobe reviewed on a deferential standard, as set forth in Rimmer v Adshead, 2002 SKCA 12, [2002] 4 WWR 119: [58] In turning to this issue, it is necessary to bear in mind that the powers in issue are discretionary and therefore fall to be exercised asthe judge vested with them thinks fit, having regard for such criteria as bear upon their proper exercise. The discretion is that of the judgeof first instance, not ours. Hence, our function, at least at the outset, is one of review only: review to determine if, in light of such criteria,the judge abused his or her discretion.

Did the judge err in principle, disregard a material matter of fact, or fail to act judicially? Only ifsome such failing is present are we free to override the decision of the judge and do as we think fit. Either that, or the result must be soplainly wrong as to amount to an injustice and invite intervention on that basis. (See, for example, McKinnon Industries Ltd. v. Walker, (UK JCPC), [1951] 3 D.L.R. 577, at 579 (P.C.) and Saskatchewan Power Corporation v. John Doe, (SK CA), [1988] 6 W.W.R. 634 (Sask.

C.A.)). [15] Moreover, the Decision is procedurally an interim one because it is part of the larger family property proceedings. This Courthas, in the past, indicated the high threshold that needs to be met to successfully challenge an such an order. This was set forth in Hall vHall, 2011 SKCA 86, 337 DLR (4th) 89 [Hall]: [3] … To succeed on an appeal from an order refusing an interim distribution of family property, an appellant must demonstrate thatthe Chambers judge erred in principle, disregarded a material matter of fact or failed to act judicially in the exercise of judicial discretion(see: Rimmer v.

Adshead, 2000 SKCA 12, [2002] 4 W.W.R. 119, at para. 58).

The standards of review with respect to support orders anddiscretionary orders are similar, and equally restrictive. [16] In the normal case, this Court is reluctant to entertain appeals of interim orders and has numerous times indicated that it is inthe interests of the parties to get on with a pretrial conference and move the matter forward rather than spend their time energy and moneyon an appeal of what usually is a discretionary order (see Mantyka v Dueck, 2012 SKCA 109 at para 47, 399 Sask R 303). [17] However, the circumstances of this case require that an exception be made to the normal approach.

The foregoing cases set outa framework for determining when errors in these kinds of orders warrant appellate intervention. In this case, the decision of the Chambersjudge falls within that framework. In my view, the Chambers judge failed to exercise his discretion appropriately. It is clear that theChambers judge had authority to make the order under s. 26 of The Family Property Act, SS 1997, c F-6.3. Additionally, there isjurisprudence with respect to the criteria upon which an order granting interim distribution of family property may be made.

However, Ineed not address or refer to the criteria in the circumstances of this case. [18] This is because, based on the text of the Decision, it is clear that the Chambers judge made no reference to or appeared not toconsider any of the numerous criteria which might be relevant to making the order. His order appears to be based solely on the triggeringfactor that allowed Ms. Burkart to renew her application, i.e., the fact that Mr. Parsons failed to promptly make the payments ordered,especially the insurance payments. [19] The home is the major asset of the relationship.

Although procedurally an interim order, the Decision is akin to a final order inthat it allows disposal of the matrimonial home by permitting Ms. Burkart to sell it to a third party. The disposition of, and approach to thedistribution of, such a major asset is usually left to be dealt with at trial. The Decision eliminates the flexibility the parties may have had to

negotiate a satisfactory settlement at the pretrial conference or otherwise. [ 20 ] That the parties’ children currently use the home when they are with their father and that the home is near the school attended by one child are also significant considerations, as is the proposal of Mr. Parsons and his mother to purchase the home in February of 2021. [ 21 ] In the circumstances of this case, it would be unjust and plainly wrong to allow the order of the Chambers judge to stand. Accordingly, it must be set aside.

I encourage the parties to move on to the pretrial conference. [ 22 ] Before concluding, I find it necessary to address two further concerns. [ 23 ] The first is that it appears Mr. Parsons has a pattern of bringing payments with respect to the home up to date immediately prior to a court application. This has happened several times, including most recently with respect to Ms. Burkart’s application in this Court to lift the stay. There is an indication that he continues to do this. This is colloquially known as playing the system . This Court frowns on such behaviour. If Mr.

Parsons comes to the court asking for relief, he must also abide by obligations imposed on him by the court. The mortgage and other payments ordered by the Chambers judge in March of 2020 must be kept up to date, rather than requiring Ms. Burkart to come to court to enforce those payments. I note that, should this pattern continue, this behaviour can, in the future, be dealt with severely by the imposition of costs against Mr. Parsons, or an application for contempt of court, if necessary. [ 24 ] My second concern is that while this matter was on reserve, Ms.

Burkart has applied to a Chambers judge of this Court to deal with and give directions concerning some of the very issues that were the subject of this appeal. Additionally, she has sought to adduce fresh evidence in that application. This course of action is not only highly improper but also an abuse of the process of the Court and a disregard of the deliberations of this panel on this appeal. IV. Conclusion [ 25 ] The appeal is allowed. There will be no costs to either party. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Caldwell J.A.” Caldwell J.A.