Seidel v Seidel, 2021 SKCA 92

Court of Appeal for Saskatchewan Docket: CACV3693 Citation: Seidel v Seidel , 2021 SKCA 92 Date: 2021-06-22 Between: Elysse Michayla Seidel Appellant (Respondent) And Chad Michael Seidel Respondent (Petitioner) Before: Leurer, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr. Justice Kalmakoff On appeal from: DIV 114 of 2020, Saskatoon Appeal heard: June 7, 2021 Counsel: Michael Scharfstein for the Appellant Tyler Dahl for the Respondent Leurer J.A. I.

INTRODUCTION [ 1 ] It is in very limited circumstances that this Court will interfere with an interim order in a family law proceeding. One of the reasons for this is that issues between the parties in such matters are best resolved by a pre-trial conference or a full hearing at the trial level. The same rationale underpins a second principle, namely, that courts should generally not vary, on an interim basis, fundamental parenting arrangements unless the affected children face risk of harm or there are other compelling reasons.

In this case, we are required to interfere with an interim parenting order because a Court of Queen’s Bench judge sitting in Chambers has overlooked this second principle: Seidel v Seidel (27 July 2020) Saskatoon, DIV 114 of 2020 [ Chambers Decision ]. II. BACKGROUND [ 2 ] The appellant, Elysse Seidel, and the respondent, Chad Seidel, married in 2009. They have two children, born in 2012 and 2014. [ 3 ] The parties separated on November 12, 2018. About a month later, Mr. Seidel moved out of the family home. On April 29, 2019, with the benefit of independent legal advice, Ms. Seidel and Mr.

Seidel entered an interspousal agreement [Agreement]. The Agreement deals comprehensively with all matters arising out of the parties’ marriage and separation. So far as it concerns parenting, the Agreement recites the parties’ “desire to settle by agreement all rights, claims, demands and causes of action each has or may have against the other arising out of the marriage with respect to the custody, maintenance, care and upbringing of the children”. It provides that the parties are to share joint custody of the children and that the children’s primary residence is to be with Ms. Seidel.

Subject to specific arrangements surrounding special dates and holidays, it establishes that Mr. Seidel is to having parenting time with the children commencing Friday after school and ending on Sunday evening three out of four weekends each month. The Agreement also fixed Mr. Seidel’s child support obligations in accordance with the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ]. [ 4 ] On March 5, 2020 – that is, less than one year after the Agreement was entered – Mr. Seidel issued a petition seeking a divorce and orders for corollary relief.

Concurrently, he served a notice of application seeking an order fixing, on an interim basis, an equal sharing of parenting time, on a week-on/week-off basis, and a commensurate adjustment to his child support obligations. [ 5 ] In his supporting affidavit, Mr. Seidel explained that he had a desire to have more parenting time than the Agreement allowed for, but that Ms. Seidel had refused. He stated that the parenting arrangements in the Agreement had been set to fit the parties’ work

schedule and the parenting needs of the children at the time. Ms. Seidel worked in a half-time position and had the ability to rearrange her

schedule to care for the children while Mr. Seidel was at work. At the time the Agreement was entered, the oldest child was in grade 2 and the youngest was in pre-kindergarten and Mr. Seidel stated that the “goal of the Agreement was for the parties to avoid the need and expense of extra child care services”. He further explained that the “purpose for the Agreement regarding access, was to avoid personal child care services. The parties chose to have [Ms. Seidel] care for the Children instead of paying for someone else to care for them while the parties were at work”. According to Mr.

Seidel, the children’s needs had changed and “the Agreement with respect to access is no longer relevant to the Children’s child care needs”. This was because the youngest child was entering grade 1 and both children would be attending an elementary school which offered a before and after school care program which would facilitate both parents to work and enjoy equal parenting opportunities. Mr.

Seidel also explained that the children were involved in sports activities and that he “would like to be more involved with the Children’s school work and school activities; however [he does] not have the opportunity with the current access

schedule of weekends only”.

[6] In her responding affidavit, Ms. Seidel explained that she had been primarily responsible for the children while Mr. Seidelattended work as well as his own activities. She explained how her work shifts are arranged to allow her, on the days the children are inher care, to get them to school and then meet them when the school bus returns. She discussed her own involvement in the children’sschooling, including time spent volunteering in their classrooms. She provided details as to the household arrangements and gave evidenceas to how the children are “accustomed to the agreed upon parenting arrangement”.

Her affidavit also provided instances of Mr. Seidel’sparenting decisions that have led her to have concern with his parenting while the children were in his care. [7] The Chambers judge identified that Mr. Seidel’s petition “recognized the custody and access arrangement from theinterspousal agreement” and summarized the relevant provisions of it (Chambers Decision at para 3). He outlined the parties’ positions,including Mr.

Seidel’s, that “the presumption is that it is in the best interests of the children to maximize time with each parent and that intheir case there is no reason why this cannot be achieved” (at para 4). The Chambers judge took note of the existing arrangements andthen stated his finding “that now that both [children] will be in full-time school, some transition would be appropriate”. However, he alsostated that he was “cautious in moving to the week on/week off requested by [Mr. Seidel] as we are still not fully aware of what willhappen in the fall with the COVID-19 pandemic” (at para 7).

As result, he found that “a gradual transition to a more shared parentingarrangement would also be better for the children than an abrupt change as requested by [Mr. Seidel]” (at para 8). The Chambers judgethen made an order providing for gradually increasing parenting time for Mr. Seidel, with the first stage to begin on September 6, 2020,the second on February 21, 2021, and the third on July 11, 2021, at which time a full shared parenting arrangement would be in place witha week-on/week-off rotation. [8] In an addendum to the fiat dated July 30, 2020, the Chambers judge ordered that Mr.

Seidel pay child support in the amountof $1,582 per month, calculated based on the Guidelines and his reported income, without set-off. Commencing February 21, 2021, “as[Mr. Seidel] will then have the children more than 40 percent of the time”, the Chambers judge chose “to invoke the set-off provisions”(at para 3), with the result that Mr. Seidel would pay support in the net amount of $785 per month. III. ISSUE [9] Ms.

Seidel recognizes the high standard of review that is applicable in cases involving an appeal from interim parenting ordersbut argues that this is “an exceptional situation in that the Chambers judge committed a material error, misapprehended the evidence andmade an error in law”. Her principal argument is that the Chambers judge committed legal error “by ignoring a parenting arrangement …that had been in place since the parties’ separation and subsequently confirmed by the terms of the Agreement, without any evidence ofrisk to the children or other compelling circumstance”.

The outcome of this appeal turns on the determination of whether the Chambersjudge made such an error. IV. ANALYSIS [10] All judicial decisions regarding the parenting of a child are made with an exclusive eye to the best interests of that child (s.16(1) of the Divorce Act, RSC 1985, c 3 (2d Supp) [Divorce Act]; and s. 10(1) of The Children’s Law Act, 2020, SS 2020, c 2). When itcomes to requests to change custody or primary residence on an interim basis, decisions are often made based on an incomplete record andthese changes themselves may be disrupted when a final resolution is achieved.

In Guenther v Guenther (1999), (SKKB), 181 Sask R 83 at para 5 (QB) [Guenther], Laing J. (as he then was) recognized the existence of “consistent case law which states thecourts should not vary interim custody arrangements whether legal or de facto in the absence of evidence that the child or children are insome way at risk, or other compelling reason”. [11] Guenther has been frequently cited in the Court of Queen’s Bench and in this Court.

It has been described by Herauf J.A. as the“seminal case with regard to changes in interim custody arrangements” (Napper-Whiting v Whiting, 2014 SKCA 33 at para 3, 433 Sask R235, emphasis in original).

Guenther was further reiterated and explained by Ryan-Froslie J.A. in Gebert v Wilson, 2015 SKCA 139, 467Sask R 315 [Gebert], as follows: [11] First, the principle expressed in Guenther does not displace the legislative requirement enunciated in both the Divorce Act, RSC1985, c 3 and The Children’s Law Act, 1997, SS 1997, c C-8.2 that in making decisions with respect to parenting arrangements, theparamount consideration is the best interests of the child. In our view, the principle itself is rooted in that paramount consideration.

Itrecognizes that changes in custody and primary residence have a profound effect on children—altering their day to day home environment,their routine, their contact with important people in their lives including caregivers, siblings, extended family and friends and may result ina change of school and activities—and thus, generally should not occur on an interim or temporary basis as a final resolution may result insuch a change being reversed with all of the same attendant disruptions to the child. [12] Second, the principle applies generally to changes in custody and primary residence, as opposed to changes in access.

In Guenther,while Laing J. refused to change the child’s custody on an interim basis in the face of the parent’s written agreement, he did increase themother’s parenting time with the child. Usually, changes in access will not have the same profound effect on a child as changes in custodyor primary residence. [13] Third, the principle recognizes that the status quo may be changed on an interim basis if there is a compelling reason to do so, or ifthe child is at risk. That is how this Court interpreted Guenther in the recent case of Napper-Whiting v Whiting, 2014 SKCA 33, 433 SaskR 235.

That case involved the appeal of an interim order which changed primary residence of a child from the mother to the father. HeraufJ.A. speaking for this Court quoted with approval para. 5 of Guenther, and then stated the following in reference to that paragraph: [4] We wish to reiterate that this is the appropriate test for applications of this nature. In this particular appeal we find that the Chambersjudge failed to find that the child was “in some way at risk, or other compelling reason….” [Emphasis added]

In short, risk to the child is not the only reason for varying the status quo on an interim basis. [ 14 ] Finally, we feel it is necessary to comment on what constitutes the status quo for the purpose of applying the principle. The status quo to which the principle applies, is not one of short duration, nor is it the situation which arises immediately following the separation of parents. Separation of necessity requires a transitional period where a child’s parenting arrangements will be in flux.

For separating parents, generally speaking, the status quo relied on by judges in determining interim applications for custody and access, is that which existed during the parent’s relationship, not what was created as an immediate response to the separation. An inevitable consequence of separation is that one parent is often left without a home and must obtain new accommodation suitable to meet the needs of their children. Moreover, in the period immediately following separation, one or both parents are often focused on reconciliation as opposed to what the ongoing parenting arrangements should be.

Once it is recognized the separation will be long-term, parents turn their minds to questions of custody and access. It is important that parents are able to pursue the goals of reconciliation and parenting agreements without fear that their failure to immediately commence a court application to determine parenting issues will prejudice their position because a new status quo is created. We recognize that the effluxion of time may eventually result in the establishment of a new status quo .

That, however, is a question of fact for determination of the Chambers judge, taking into account among other things, the length of time that has passed since the separation, the reasons for the delay in bringing the application, and how the parenting regime was established ( e.g. by agreement, unilateral action of one party, necessity, etc.). All of this must be considered against the backdrop of what is in the best interest of the child, including the relationship that the child enjoyed with both parents prior to the separation . (Emphasis in original) [12] Although Mr.

Seidel would have us see it otherwise, the interim order made by the Chambers judge represents a fundamental change to the status quo arrangements for the parenting of the children. The parties agree that after Mr. Seidel left the family home, the children lived with Ms. Seidel. Although the parties presented somewhat different calculations as to the division of time the children spent with each parent, after the Agreement was entered, the undoubted status quo was that the children’s primary residence was with Ms. Seidel. It was at her home that the children most often slept.

It was from her home that the children left for school and returned each school day. At the point the interim order had been made in late July 2020, this status quo had prevailed for 19 months, if measured from the date of separation, or 15 months, if measured from the date of the Agreement. Therefore, the effect of the order made by the Chambers judge is to alter the primary residence of the children. This change is not a mere adjustment to existing access arrangements.

I therefore conclude that, in keeping with Guenther and Gebert , it was open to the Chambers judge to order this change only if the children were at risk or there was another compelling reason to do so. [13] I see no suggestion in the Chambers Decision that the Chambers judge considered this principle as a guide to the exercise of his discretion. Other than framing the application and making his order, the following is the totality of the Chambers judge’s reasons: [4] It is [Mr.

Seidel’s] position that the interspousal agreement on parenting time was initiated because at that time the youngest child […] was still not in school and it was felt that as [Ms. Seidel] worked half time, it was better for [Ms. Seidel] to have the majority of the weekday time so that the parties would not have to deal with outside childcare. [Mr. Seidel] argued that as both children will now be in school as of September 2020 and there are before and after school programs at their school, that is no longer necessary for [Ms. Seidel] to provide that at-home care during the weekdays. [Mr.

Seidel] argued that the presumption is that it is in the best interests of the children to maximize time with each parent and that in their case there is no reason why this cannot be achieved. [5] For her part, [Ms. Seidel] argued that the parties should keep the parenting arrangements as set out in the interspousal agreement as that was their agreement with independent legal advice at the time. She raised a few instances where she stated that [Mr. Seidel] may have made some less than perfect choices on dealing with the children but there is no indication from [Ms. Seidel] that [Mr.

Seidel] is not a loving and caring father who will do what is necessary to care for the children. [6] The current arrangement has [Mr. Seidel] with at least three of every four weekends which once the children are both in school will be the majority of their out-of-school daytime activity time. [7] I find that now that both [children] will be in full-time school, some transition would be appropriate. However, I am cautious in moving to the week on/week off requested by [Mr. Seidel] as we are still not fully aware of what will happen in the fall with the COVID-19 pandemic.

Perhaps the children will be in school full time, perhaps they will not. [8] I find that a gradual transition to a more shared parenting arrangement would also be better for the children than an abrupt change as requested by [Mr. Seidel]. [14] Read restrictively, the Chambers Decision provides no substantive reasons for the making of the interim order it did; the Chambers Decision moves directly from a

summary of the parties’ respective positions (at paras 4–5) to a

summary of Mr. Seidel’s limited parenting opportunities (at para 6) to stating that “now that both [children] will be in full-time school, some transition would be appropriate” (at para 7). The Chambers Decision does not explain why any transition would be “appropriate”. [ 15 ] Viewed in the light most positive to Mr. Seidel’s position, it might be said that the Chambers judge accepted his contentions that: (

a) the parenting arrangement spelled out in the Agreement was intended to only be temporary; (

b) the presumption is that it is in the best interests of the children to maximize time with each parent and, at its highest, this involves complete shared parenting; and (

c) because this can be achieved, shared parenting should be ordered. This understanding of the Chambers Decision reveals legal error. [ 16 ] On this view of it, the Chambers judge misinterpreted the maximum contact principle, which was then expressed by s. 16(10) of the Divorce Act in relation to initial parenting orders. That

section did not call for equal shared parenting. It directed to courts to “give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child ” (emphasis added). Section 16(6) of the amended Divorce Act now expresses the same principle in slightly different language. As explained by Ryan-Froslie J.A. in Ackerman v Ackerman , 2014 SKCA 86 at para 40 , 442 Sask R 113, this provision “does not create a presumption in favour of shared parenting”.

Instead, “it establishes the principle that maximum contact between a child and each of his or her parents is desirable. What that ‘maximum contact’ should be in any particular case depends on the best interests of the child.” In the context of an application for an interim parenting order, this means that other considerations, including those established in Guenther and

Gebert, must be weighed. [17] Further, the Chambers judge then applied this incorrect maximum contact test without considering other factors bearing on thebest interests of the children. More specifically, I cannot find within the reasoning expressed in the Chambers Decision any considerationthat, by ordering shared parenting, the Chambers judge was disrupting the settled status quo and that, generally, this should be done on aninterim basis only if the children were at risk or there was another compelling reason to do so. This constituted legal error, which invitesthis Court’s intervention. [18] Mr.

Seidel’s counsel candidly acknowledged that the parenting arrangements mandated by the Agreement create no risk to thechildren. As well, while Mr.

Seidel was not prepared to accept that he should be required to show a compelling reason to change thesearrangements on an interim basis, the only reason that his counsel could offer as a justification for this change is the proposition that thechildren would benefit from maximum contact with both parents, and that this entails full shared parenting. [19] In this case, the parties had agreed in April 2019 that the children’s best interests were served by an arrangement that involveda significantly different parenting arrangement than shared parenting.

Of course, the court is not bound by the parties’ agreement.However, the fact that they had agreed this arrangement was in the children’s best interest itself has significance. Also significant is thatthe Agreement contemplates the circumstance said to justify a change from the agreed upon parenting arrangement, that is, that thechildren would be attending school.

However, it does not contemplate a change in or review of parenting arrangements in those or anyother circumstances. [20] In Orth v Orth (1998), (SK CA), 168 Sask R 1 (CA) this Court allowed an appeal from an interimparenting order under the Divorce Act. The appeal was brought on the grounds that “the order went too far in the circumstances, includingthe fact the parties had only recently entered into a separation agreement on different terms and the court had only the month beforeordered the speedy trial of the petition” (at para 2).

In this context, Cameron J.A. stated: [3] This court is extremely reluctant to interfere on appeal with interim orders, much preferring to see the parties proceed as rapidly aspossible to trial: Foss v. Foss (1991), (SK CA), 31 R.F.L.(3d) 367 (Sask. C.A.). It is also reluctant to see interiminterference with the terms of separation agreements: Bacon v. Bacon (1991), (SK CA), 93 Sask. R. 155; 4 W.A.C. 155(C.A.). This is especially so of a separation agreement of recent date, concluded on the independent advice of counsel.

Assuming theagreement is working reasonably well and the matters brought into question by the petition are likely to be tried sooner than later, there ismuch to be said for leaving the parties to the terms of their agreement, if for no other reason than to keep the interim proceedings fromtaking on a life of their own, to the detriment of the proceedings generally. And so healthy measures of restraint are called for in suchcircumstances. [21] While Mr. Seidel gave evidence that the parenting arrangement set out in the Agreement was to be a transitional arrangement,this point is contested.

Because the correctness of this position – if it is maintained by Mr. Seidel – may require resolution at trial, I willsimply recognize Ms. Seidel’s argument that it is difficult to square with the language in the Agreement itself. In this regard, she points tothe recital that the Agreement manifests the parties’ “desire to settle by agreement all rights, claims, demands and causes of action eachhas or may have against the other arising out of the marriage with respect to the custody, maintenance, care and upbringing of thechildren” (emphasis added).

She also points out the provisions that structure holiday parenting time around the school schedule. Theexistence of these competing arguments add weight to the need for caution before a change is made to the agreed upon parentingarrangements on an interim basis. This was explained by Jackson J.A. in Schedlosky v Weber, 2016 SKCA 158 as follows: [6] Gebert v Wilson, 2015 SKCA 139, [2016] 5 WWR 656 [Gebert], is the leading authority in this jurisdiction on when existing childcare arrangements may be disturbed on an interim application.

Of the principles that emerge from Gebert, two should be mentioned here.First, judges must not feel themselves constrained by a status quo that is not in the best interests of the child. Second, an existing statusquo may be set aside if the child is at risk, or other compelling reason. In a case such as this one, where the affidavits are in direct conflicton fundamental matters, a Chambers judge, who is asked to set aside an existing custody arrangement, must proceed with particularcaution.

Here, the basis of the conflict was fundamental: the mother’s suitability to parent assessed in light of an existing custodyagreement that had been in place for 18 months. The proper course was to move the matter along to a pretrial conference – and trial, ifnecessary. [22] In this case, the parties agreed that the children were doing well under the existing parenting arrangements. To be certain, Mr.Seidel expressed a strong desire for more parenting time and argued that his desire aligned with the children’s best interests.

He mayprevail at trial in establishing that a shared parenting arrangement is in their best interests. However, there is nothing on the record toestablish a compelling reason – or indeed, any reason – to change the status quo on an interim basis until the matter can be finally resolvedat trial. In contrast, the reasons for not ordering such an interim change are strong.

In this regard, I would reiterate what Ryan-Froslie J.A.said in Gebert: [11] … changes in custody and primary residence have a profound effect on children—altering their day to day home environment,their routine, their contact with important people in their lives including caregivers, siblings, extended family and friends and may result ina change of school and activities—and thus, generally should not occur on an interim or temporary basis as a final resolution may result insuch a change being reversed with all of the same attendant disruptions to the child. [23] In sum, in my respectful view, the Chambers judge erred in law by failing to take heed of this principle when he ordered, on aninterim basis, a change to the parenting regime established in the Agreement.

V. CONCLUSION [24] The error of the Chambers judge requires that this Court set aside the interim parenting order he made. In its place, an interimorder will issue designating the primary residence of the children be with Ms. Seidel and that Mr. Seidel shall have the parentingopportunities as set out in the Agreement.

[ 25 ] The parties agreed that the Chambers judge had made minor errors in the interim child support order and, further, that should Ms. Seidel prevail on the main issue, it would also be appropriate to adjust the interim child support order. In this regard, it is further ordered that: (

a) Mr. Seidel shall pay interim child support pursuant to s. 3 of the Guidelines in the amount of $1,582, commencing September 1, 2020, until further agreement of the parties or order of the court; (

b) the parties shall share, in proportion to their respective salaries (currently $114,262 for Mr. Seidel and $57,698 for Ms. Seidel), s. 7 expenses of the children; (

c) Mr. Seidel shall forthwith pay to Ms. Seidel $150 in satisfaction of child support arrears prior to May 31, 2020; and (

d) the issued order shall include the clause that is set out in s. 21.12(1) of The Family Maintenance Regulations, 1998 , RRS c F- 6.2 Reg 1 . [ 26 ] Ms. Seidel has achieved substantial success in this appeal. I would award her costs in the fixed amount of $2,000, payable to her by Mr. Seidel forthwith. “Leurer J.A.” Leurer J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.