C.H. v S.F., 2021 SKCA 24

Court of Appeal for Saskatchewan Docket: CACV3675 Citation: C.H. v S.F. , 2021 SKCA 24 Date: 2021-02-10 Between: C.H. Appellant/Applicant (Petitioner) And S.F. Respondent/Respondent (Respondent) Before: Caldwell, Schwann and Leurer JJ.A. Disposition: Application for fresh evidence granted in part; Appeal allowed Written reasons by: The Court On appeal from: FLD 465 of 2009, Prince Albert Appeal heard: February 10, 2021 Counsel: Christine Koroll for the Appellant S.F. on his own behalf The Court I.

Introduction [ 1 ] This appeal arises from a dispute over the arrangements for the parenting of the children of C.H. and S.F. At issue in this appeal is whether C.H. was denied procedural fairness in the proceedings in the Court of Queen’s Bench. [ 2 ] At the hearing of this appeal, we gave judgment allowing C.H.’s appeal and remitting this matter to the Court of Queen’s Bench. We indicated at that time that we would provide written reasons. What follows are those reasons. II. Background A. Proceedings between the parties [ 3 ] C.H. and S.F. separated in 2009. At the time, their two children were infants.

The children are now aged 12 and 15. [ 4 ] After the parties’ separation, interim parenting orders were made on November 17, 2009, December 15, 2009, December 23, 2009, and January 5, 2010. The overall effect of these orders was that the parties would have joint custody but the primary residence of the children would be with C.H., and S.F. would have specified parenting time.

A pretrial conference was held in 2011, which resulted in minutes of settlement that continued this basic interim arrangement but without a final resolution of parenting arrangements. [ 5 ] In August 2018, C.H. was involuntarily admitted to hospital due to mental health concerns. For a time, the children were in S.F.’s care and C.H. was limited, by several court orders, to supervised parenting time only. S.F. made an application to vary the parenting arrangement, requesting an order that he have sole custody and primary care of the children pending trial.

His application was dismissed by Meschishnick J. in a fiat dated December 10, 2018. Justice Meschishnick found that there was “no question as to the status quo”, that is that “the parties have joint custody of the children and that they reside primarily with [C.H.]”.

Justice Meschishnick further found that there was no “compelling reason to vary the parenting arrangement that existed prior to [C.H.’s hospitalization]” and he could “not find [C.H.’s] mental health episode which was brief in time and for which appropriate treatment has been found should prevent [C.H.] from continuing in her role as primary parent”. [ 6 ] C.H. had another mental health event in March 2020. She was again hospitalized. The Prince Albert Police and Crisis Team became involved. A friend of C.H. contacted S.F. to pick up the children.

The children have remained in his care since that time. [ 7 ] These events prompted two applications. C.H. applied without notice for an order that the children be returned to her care. Justice Zuk refused to grant this order on an ex parte basis and directed the matter into regular Chambers to be spoken to on April 14, 2020. In the meantime, S.F. made application seeking an order that he have sole custody of the children and that C.H. have no contact with the children “so they can participate in reunification programming”.

S.F.’s application was also made returnable on April 14, 2020. [ 8 ] Both C.H. and S.F. filed affidavits in connection with these two applications. These affidavits speak to the history of the proceedings and the parties’ parenting abilities, including the state of C.H.’s mental health and her use of marijuana. [ 9 ] After several adjournments, both applications came before Meschishnick J., sitting in Chambers on May 19, 2020. He dealt with several evidentiary issues before he ordered that: (

a) the matter be adjourned to July 7, 2020; (b) “on that return date the court expects [a] filed updated report by [C.H.’s psychiatrist] and a report from [C.H.’s] addiction counsellor”; (

c) C.H. “is to have drug screens taken

on a weekly basis”; and (

d) C.H. “will have supervised access” to the children, the details of which were specified in the order. [ 10 ] C.H. subsequently filed two additional affidavits, both sworn on June 29, 2020. In her own affidavit, C.H. spoke to her medical treatment. She attached an updated report from her psychiatrist, gave evidence as to her continued attendance at addiction counselling and also addressed other issues pertaining to the relationship of the parties to their children and to the parties’ parenting of the children.

The second affidavit was sworn by C.H.’s mother and spoke to C.H.’s parenting abilities and medical treatment. S.F. also filed a further affidavit sworn on July 2, 2020, replying to C.H.’s affidavit of June 29, 2020. It also provided additional information relating to the children and the parties’ parenting abilities. B. The Chambers decision [ 11 ] The two applications came before the presiding judge in Chambers on July 7, 2020. In accordance with the practices of the Court of Queen’s Bench in place during the COVID-19 pandemic, parties and their counsel were to appear by way of telephone.

For reasons that I will later explain, neither C.H. nor her counsel, Christine Koroll, were in attendance on that day. S.F. was present, as was his counsel. Following the receipt of submissions from S.F.’s counsel, the Chambers judge made the following order, as endorsed by the court clerk: The court grants an order for the respondent [S.F.] interim sole custody for [ sic ] the two boys. Rule 10-4 is waived. [ 12 ] The Chambers judge gave no reasons for making this order. [ 13 ] A formal order issued the next day. III. Issues [ 14 ] C.H. has appealed the Chambers judge’s order. She has two grounds.

Her first is that the Chambers judge breached principles of procedural fairness by proceeding to hear the application in the absence of her or her counsel, by failing to provide reasons and by failing to reopen the matter when he learned that she wished to make representations. C.H.’s second ground of appeal is that the Chambers judge erred by changing the status quo and primary residence of the children on an interim application.

To provide an evidentiary basis for her arguments, C.H. has filed an application to adduce fresh evidence on appeal. [ 15 ] C.H.’s appeal is appropriately decided by the answers to two questions: (

a) Should this Court receive C.H.’s proposed new evidence? (

b) Was the process leading to the July 7, 2020 order procedurally fair ? IV. Analysis A. Should this Court receive C.H.’s proposed new evidence? [ 16 ] C.H. has applied to introduce two affidavits as evidence in her appeal. The first affidavit is her own. In it, C.H. speaks principally to the circumstances that led to the non-appearance of her and Ms. Koroll at the Chambers hearing held on July 7, 2020 [July 7 Hearing].

C.H.’s affidavit also describes the arrangements S.F. has implemented for the schooling of the children and the difficulties C.H. has experienced in securing access to the children while they are under his care. The second affidavit is of C.D, a registered nurse and friend of C.H. She attests to the fact that she is aware of C.H.’s mental health issues but, nonetheless, has entrusted the care of her two children, aged 17 months and 7 years, to C.H.

C.D. expresses her “full trust in [C.H.’s] ability to care for [her (C.D.’s)] children”. [ 17 ] In relation to the events that led to the non-appearance of C.H. and Ms. Koroll at the July 7 Hearing, C.H.’s affidavit relates the following facts: (

a) On Friday, July 3, 2020, Ms. Koroll’s office was served with S.F.’s affidavit sworn July 2, 2020. (

b) On Monday, July 6, 2020, C.H. was advised by Ms. Koroll that S.F.’s affidavit contained objectionable material, but there was not sufficient time to file a notice of objection prior to the next day’s scheduled Chambers appearance. (

c) That same day, Ms. Koroll sent a letter, via fax, to the Court of Queen’s Bench local registrar confirming her understanding that the matter was to be in Chambers the following day. In keeping with what Ms. Koroll understood to be the court’s practice, she provided telephone numbers where both she and C.H. could be reached. The letter further advised that C.H. had “significant evidential concerns” with respect to an exhibit to S.F.’s affidavit, but “due to time constraints and being out of the office today”, she had not been able to file a notice of objection. Ms.

Koroll asked the local registrar to provide the letter to the Chambers judge “so that he/she is aware of the same and that [she (Ms. Koroll)] will be asking to have this addressed at Chambers tomorrow”. (

d) At 7:40 a.m. on July 7, 2020, Ms. Koroll sent an email to S.F.’s counsel seeking an adjournment of the matter so as “to respond to the new matters, and for [her] to be able to file a Notice of Objection”. Ms. Koroll proposed, as dates, July 21, 2020, or July 28, 2020. (

e) At 10:10 a.m. on the same day, S.F.’s counsel replied and stated that she was “agreeable to adjourning to July 28th”. (

f) In keeping with her understanding of the applicable procedure during the COVID-19 pandemic, Ms. Koroll sat by her

telephone expecting a call from the Court of Queen’s Bench when it was time for the matter to go forward. No such call was received.Early that afternoon, Ms. Koroll received a letter from S.F.’s counsel advising as follows: Please be advised that I attended court this morning via telephone conference and advised the judge that I had received an email from youthis morning that you would be seeking an adjournment of the matter. The court asked to see if you were on the line and there was noresponse. As a result the court allowed me to speak to the adjournment request which was opposed by my client.

I advised the court that this was at least the third time that we were back before the court on our application and that my client wasrequesting an interim decision and opposing the adjournment. [The Chambers judge] stated that he had read the material and was satisfiedthat the father should have interim sole custody pending the outcome of the trial. The court also on its own volition waived rule 10-4. I advised the court that I felt that you would object to the decision, but that I would write a letter to you to advise of what occurred in yourabsence.

I asked if the court would prefer to be [copied] on the letter and the court suggested that would be prudent. (

g) Ms. Koroll promptly contacted the Court of Queen’s Bench local registrar’s office by telephone “to find out what hadhappened and to request whether the matter could be reopened”. Ms. Koroll was told by registry staff that an email had been sent to herthe previous Friday (July 3, 2020) advising that, in a change from previous practice, the court would not telephone counsel when it wastime for the Chambers matter to be heard. Instead, counsel was to phone in for Chambers via an assigned teleconference number. Ms.Koroll had not seen this email. She subsequently checked and determined that it had gone into her junk email folder. (

h) Ms. Koroll acted quickly to secure an opportunity for her client’s position to be heard. Still on the afternoon of July 7, 2020,she wrote to the local registrar by fax, describing what had occurred and “to see if this matter could be re-opened so that we may make oursubmissions in regard to the same”. The letter concluded by asking that the local registrar “provide the presiding Judge with a copy of[the] letter and advise of his instructions on the same”. (

i) On July 7, 2020, while Ms. Koroll waited for a reply from the court to her letter, additional correspondence passed betweenher and S.F.’s counsel, addressing the possibility of the matter being reopened. Ultimately no agreement was reached between the parties.During this exchange, Ms. Koroll sought clarity as to why the matter proceeded in the face of the agreement that she had reached withS.F.’s counsel to adjourn the matter. S.F.’s counsel advised that she had agreed to the adjournment before she had obtained instructionsfrom her client.

S.F.’s counsel further stated that she “did advise the judge this morning that my client opposed the adjournment after heinstructed that he did not agree to me adjourning the matter”. (

j) On July 9, 2020, Ms. Koroll was advised by the registry office that the Chambers judge would not reopen the matter “as theOrder had already been made”. [18] The law generally applicable to applications to admit evidence in this Court for use in an appeal was set out in Maitland vDrozda (1983), (SK CA), 22 Sask R 1 (CA), and Turbo Resources Ltd. v Gibson (1987), (SK CA),60 Sask R 221 (CA), and was most recently summarized in Mental Health and Addiction Services v S.B., 2021 SKCA 18. These cases,together with R v Palmer, (SCC), [1980] 1 SCR 759 [Palmer], refer to four factors that bear on whether such evidenceshould be admitted, as follows: (

a) evidence that was in existence at the time of the order under appeal will not generally be admitted if, bydue diligence, it could have been adduced before the court whose order is under appeal; (

b) the evidence must be relevant, in the sensethat it bears upon a decisive, or potentially decisive, issue in the proceeding; (

c) the evidence must be credible in the sense that it isreasonably capable of belief; and (

d) the evidence must be practically conclusive of a decisive, or potentially decisive issue, or, as stated inPalmer at 760, the evidence “must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, beexpected to have affected the result”. It is important to note that these four factors reflect “the balancing of competing considerationsrelevant to the interests of justice when fresh evidence is offered to attack a determination made at trial” (R v W. (W.) (1995), (ON CA), 100 CCC (3d) 225 at 232 (Ont CA) [W. (W.)]).

The same criteria are not necessarily applied, or applied with the samerigour, when the evidence is offered for a different purpose, such as when it is “not directed at a finding made at trial but insteadchallenges the very validity of the trial process” (W. (W.) at 232; see also, Onion Lake Cree Nation v Stick, 2020 SKCA 101 at para 85).This, of course, is the situation at play in this appeal, so far as issue is taken with the fairness of the proceedings in the Court of Queen’sBench. [19] The evidence relating to the circumstances that led to the non-appearance of C.H. and Ms.

Koroll at the July 7 Hearing meetsevery part of the test for admission, so far as that test should be applied in relation to the fairness issues raised in this appeal. As we willexplain, the evidence is not only relevant to the question as to whether the proceedings leading to the July 7, 2020 order were procedurallyfair, but it is decisive of that issue. The evidence is unchallenged and largely based on written exchanges. It is therefore credible. Finally, itcannot be said that there is a failure of due diligence.

In this regard, at least so far as C.H.’s challenge is directed to the fairness of theproceedings in the Court of Queen’s Bench, there would be no expectation that the evidence would have been adduced at the time theorder was made. For these reasons, the evidence relating to the circumstances that led to the non-appearance of C.H. and Ms. Koroll at theJuly 7 Hearing is admitted into this appeal. [20] We would, however, not admit the remainder of C.H.’s affidavit or the affidavit of C.D. This evidence pertains to the merits ofthe parties’ positions in respect to the parenting of their two children.

The determinative issue in this appeal is whether the processfollowed leading to the July 7, 2020 order was procedurally fair. The remainder of C.H.’s affidavit, and all the evidence of C.D., istherefore irrelevant to the determinative issue in this appeal. B.

Was the process leading to the July 7, 2020 order procedurally fair? [21] C.H. contends that the Chambers judge breached principles of procedural fairness by proceeding to hear the application in theabsence of her or her counsel, by failing to provide reasons and by refusing to reopen the matter when he learned that she wished to makerepresentations. [22] Although most frequently discussed in an administrative law context, principles of procedural fairness, including the basic rightto be heard before a decision is made – as encapsulated in the Latin dictum, audi alteram partem – originally developed in the context of

proceedings in courts of law. These principles therefore applied in the proceedings in the Court of Queen’s Bench leading to the July 7,2020 order. [23] Here, there is nothing on the record to suggest that the Chambers judge was aware of the reasons why Ms. Koroll or C.H. werenot present at the July 7 Hearing. S.F.’s counsel stated in her letter of that date to Ms. Koroll that she had “advised the court that [she] feltthat [Ms. Koroll] would object to the [adjournment] decision”. This statement contains no suggestion that S.F.’s counsel advised theChambers judge that she had previously agreed to the adjournment.

To the contrary, because S.F.’s counsel actively opposed theadjournment, I would infer that the Chambers judge was unaware of this fact. In drawing this inference, we acknowledge that there is nodirect evidence as to these circumstances, other than what is contained in the letter from S.F.’s counsel to Ms. Koroll. [24] The record disclosed that the matter had been ordered into Chambers on July 7, 2020. Although this was not done onperemptory basis, clearly C.H. and her counsel were aware the matter was going ahead. It can be inferred from the record thatMs.

Koroll’s letter dated July 6, 2020, was not brought to the Chambers judge’s attention. In these circumstances, while other judgesmight have caused further inquiries to be made as to why Ms. Koroll was not present in court on July 7, 2020, we are not prepared to findprocedural unfairness simply because the Chambers judge initially proceeded in the absence of C.H. or her counsel. [25] However, the uncontradicted evidence is that Ms. Koroll contacted the local registrar and reiterated that her client hadrepresentations to make before the order was taken out.

Until the order was issued, the Chambers judge had jurisdiction to reconsider orwithdraw it. This point was made by Martin J.A. (as he then was) in Friesen v Saskatchewan Mortgage and Trust Corporation Limitedand Mennonite Land Sales Company, (SK CA), [1926] 4 DLR 496 at 497 (Sask CA) [Friesen]: … Until a judgment or order has been entered or drawn up, there is an inherent power in every Court to vary its own order so as to carryout what was intended, and to render the language used free from doubt.

The Court has power, so long as the order has not been perfected,to reconsider and even to withdraw the order made, so that the decision may be reconsidered[.] [26] Justice Martin reiterated this point in Rygus v Zawitkowski (No. 2), (SK CA), [1928] 2 DLR 539 at 539 (SaskCA), wherein he held that “[f]ormal judgment has not been entered, and so long as an order has not been perfected the Judge has power toreconsider; but when once the order has been completed, the jurisdiction over it is at an end”. See also: Peltier v Taylor, 2008 SKCA 151at para 8, 314 Sask R 211.

That said, while the Chambers judge had the jurisdiction to amend or vary his order, courts generally only doso in exceptional circumstances: Metx v Marshall (1922), (SK CA), [1923] 1 DLR 367 at 368 (Sask CA); Storey vZazelenchuk (1985), (SK CA), 40 Sask R 241 at paras 2–​7 (CA); and Saskatchewan v Mountain Pacific Transport Ltd.(1995), (SK KB), 129 Sask R 9 at paras 13–14 (QB). [27] In our view, the circumstances here were exceptional and required that the Chambers judge reconsider the order he had madein the absence of C.H. or her counsel. The record does not allow us to be certain that Ms.

Koroll’s July 7, 2020 letter to the local registrar,advising that her client wished to have the matter reopened, was brought the Chambers judge’s attention before the order issued the nextday. If it was, then the Chambers judge committed an error in principle by failing to recognize that he had jurisdiction to reopen thematter. If there was a delay within the registry office in providing the letter to the Chambers judge, the error may be seen to be moreinstitutional in nature, but the procedure was nonetheless unfair.

Under both scenarios, on the face of what was before the court prior tothe issuance of the order, it was patent that C.H. had intended to provide submissions, but she had not been heard.

Under either scenario,this Court must intervene. [28] In Central Credit Union Limited v Lewis, 2014 PECA 7, 1085 APR 297 [Central Credit Union], the court held, with referenceto several authorities including Friesen, that it would be appropriate to reopen a matter when an order was made contrary to a pre-existingarrangement between counsel: [4] Once the formal order has been issued, the Court is functus save for an error arising from an accidental slip or omission or aparticular on which the Court did not adjudicate (Rule 59.05).

Until that time, the Court has the power to reconsider and vary its judgment.However, this is a power which a court should be most reluctant to exercise and should do so only in exceptional and specialcircumstances otherwise the important principle of finality would be in jeopardy. [UAP Inc. v. Oak Tree Auto Centre Inc. et al., 2003PESCAD 6; Business Development Bank of Canada v. ABN AMRO Leasing, 2003 PESCAD 21; Ayangma v. Eastern School Board, 2008PESCAD 15 , 2008 PECA 15; Fruehauf Trailor Company v.

McCrea, (NB CA), [1955] 3 D.L.R. 543(NBCA)]. [5] A court may use the power to reconsider, for example, where, unbeknownst to the court there was a pre-existing agreementbetween counsel that runs contrary to the court’s judgment (UAP v. Oak Tree Auto Centre, supra), where the wording of the decision isambiguous and does not truly reflect the true intention of the court (Friesen v. Saskatchewan Mortgage and Trust Corporation, (SK CA), [1926] 3 W.W.R. 125 (Sask.C.A.), or to prevent a miscarriage of justice (Insurance Corporation of BritishColumbia v.

Dommasch (1978), (BC SC), 8 B.C.L.R. 241 (BCSC)). (Emphasis added) [29] Although the Prince Edward Island Court of Appeal found that there was no justification to reopen the case in Central CreditUnion, we find its dicta helpful. In the case before us, since there was a pre-existing agreement between Ms. Koroll and S.F.’s counsel thatthe matter would be adjourned, the order made in the absence of submissions on behalf of C.H. ran contrary to this arrangement. [30] Even without this existing arrangement in place, in our view, it would have been necessary to set the order aside.

Richards-Rewt v Ruchchyna, 2019 BCCA 143 [Richards-Rewt] involved very similar facts to those here, including an application to determineinterim parenting arrangements. The evening before the application was heard, Mr. Richards-Rewt sent an email to the court registraradvising that he had a sudden medical problem. He provided a telephone number where he could be reached. On the day of the hearing,the Chambers clerk tried, without success, to reach him.

The judge proceeded in his absence, found there to have been a material change incircumstances and made an order altering the parenting arrangements contrary to the interests of Mr. Richards-Rewt. This order wasoverturned by the British Columbia Court of Appeal.

[ 31 ] Mr. Richard-Rewt had a history of “willfully obstructing the hearing of this application for some length of time”. He had also filed several other applications that had not been heard, with the result being that “parental rights and obligations of the parties, and more importantly the parenting of their daughter, were effectively in limbo”. All of this led Newbury J.A. to explain that it was “perhaps not surprising that the chambers judge decided to proceed in the circumstances” (at para 4). However, the fact was that, as it turned out, Mr.

Richard-Rewt had been admitted to hospital on an emergency basis and this was the reason why he had not appeared in court for the hearing. This formed the basis for the Court of Appeal to intervene, because Mr. Richard-Rewt had been deprived of a right to be heard: [7] Although there are occasions on which it may be proper to proceed in the absence of one of the parties, the fact that Mr. Richards- Rewt was in hospital provides an acceptable explanation.

It would in my view be a breach of procedural fairness, in particular the principle of audi alteram partem , if he were not afforded an opportunity to be heard in response to Ms. Rushchyna’s application. The appeal must, in my opinion, therefore, be allowed and the application remitted back to the Supreme Court for re-hearing. [ 32 ] The same result must prevail here. Serious interests were at stake in the applications that came before the Chambers judge on July 7, 2020. Together, the two applications put into issue the future arrangement for the parenting of the children pending trial.

There was no apparent prejudice to any party if the matter was adjourned, as had been agreed to by S.F.’s counsel. At that point, the children were with S.F.; further delay could only work to the prejudice of C.H.

In these overall circumstances, once it was obvious that C.H. had intended to make representations but had been denied that opportunity, fairness demanded that she be heard. [ 33 ] Finally, we would agree that the failure by the Chambers judge to provide any reasons for his order constitutes a second, and independent, breach of the duty of fairness: Gebert v Wilson , 2015 SKCA 139 at paras 16–20 , [2016] 5 WWR 656. But for the first breach of the duty of fairness we have found, and the passage of time, we may have considered conducting our own analysis of the children’s best interests.

In the present circumstances, considering that C.H. was not properly heard before the order under appeal was heard, and that given the passage of time both parties may wish to file additional evidence relating to the children’s best interests, it is appropriate that the matter be returned to the Court of Queen’s Bench for determination afresh. V. Conclusion [ 34 ] C.H.’s appeal is allowed. The order made on July 7, 2020 is set aside. The matter is remitted to the Court of Queen’s Bench. C.H. shall have her costs in this appeal, which we would fix at $500.00.