Miller v Vevang, 2022 SKCA 139

Court of Appeal for Saskatchewan Docket: CACV4058 Citation: Miller v Vevang , 2022 SKCA 139 Date: 2022-12-01 Between: Morley Dominic Miller Appellant (Petitioner) And Amber Gail Vevang Respondent (Respondent) Before: Richards C.J.S., Leurer and McCreary JJ.A. Disposition: Appeal allowed Written reasons by: The Court On appeal from: FLD-SA-00167-2019, Saskatoon Appeal heard: November 14, 2022 Counsel: Timothy Turple for the Appellant Chelsie McKay for the Respondent The Court [ 1 ] This appeal concerns an interim parenting order.

Amber Vevang sought sole decision-making authority with respect to her and Morley Miller’s child, born in 2014. She also asked that Mr. Miller have only supervised access to the child. These requests were rooted in concerns arising from the fact that Mr. Miller had been recently charged with impaired driving causing death. Ms. Vevang had originally sought an order providing for joint decision-making authority, parenting on every second weekend for Mr. Miller and shared parenting for holidays and birthdays. For his part, Mr.

Miller asked for joint decision-making authority with equal parenting time on a weekly rotation. [ 2 ] Overall, the evidence before the Chambers judge was highly controverted. In an affidavit, sworn July 8, 2022, Ms. Vevang expressed concerns about the level of care and supervision the child received when he was with Mr. Miller. She averred that, since she and Mr. Miller had separated in 2014, his parenting had been “quite sporadic” and that there were occasions when he had not seen the child for an entire month. She indicated that, from May 13, 2022 to June 17, 2022, Mr.

Miller had parented every other weekend from Friday at 3:30 p.m. until Sunday at 6:00 p.m. [ 3 ] In his affidavit of July 19, 2022, Mr. Miller took issue with Ms. Vevang’s concerns about the level of care that he provided to the child. He swore that he and Ms. Vevang had cohabited on and off until 2019, not 2014, when they had separated for the final time. He said that the child was “very accustomed to spending time with [him] regularly”. He averred that, for several months in 2020, there had been an “almost weekly parenting rotation where [the child] would be with [him] for anywhere from 5 to 7 days at a time”.

He said that for 2021, he and Ms. Vevang had parented the child “on an almost equal basis” with a

schedule that was close to a week on and a week off. In 2022, Mr. Miller described a number of difficulties in getting access to the child during the first part of the year and an agreement negotiated by counsel whereby the child regularly had spent each alternate weekend with him from early May until late June. [ 4 ] Mr. Miller also filed an affidavit sworn by Claire Anderson, a woman with whom he has been romantically involved since the fall of 2019. She made brief mention of the child’s behaviour on what she referred to as “the week on week off schedule” but provided no information as to when that

schedule had been in place or how long it had been in place. Mr. Miller’s father also swore an affidavit. He averred that “I regularly interact with [the child] when he comes with [Mr. Miller] to our home in…and at the family farm” but gave no further indication as to how often those visits occurred or how long they lasted. [ 5 ] In her reply affidavit sworn July 25, 2022, Ms. Vevang denied that the child was accustomed to regularly spending significant amounts of time with Mr. Miller.

She reiterated that his parenting had been “sporadic at best” and that the child had rarely spent periods as long as five to seven days with Mr. Miller. [ 6 ] The Chambers judge dealt with Ms. Vevang’s application in a short fiat. His substantive analysis was limited to a paragraph in which he summarized the parties’ positions, and another in which he considered the parenting status quo, by writing as follows: This is a difficult situation where the mother alleges family violence and intimidation and harassment and withholding of the child by the father.

The father alleges withholding of the child by the mother, some of which is controverted and some of which is not controverted.

Having reviewed the evidence, it is my view that the status quo is that of primary residence with the mother, with the father having parenting time that has fluctuated over time going between some sporadic exercise of parenting time to at least some period of something approximating week on week off although there is no indication of how long that existed for. [ 7 ] The Chambers judge then ordered as follows: Accordingly, the child…shall on an interim basis, reside primarily with the mother. The mother and father shall share joint decision making in respect of the child.

The father shall have parenting time with the child every second weekend from after school on Friday to Sunday at 4:00 p.m. extending to Monday at 4:00 pm on long weekends. As well on the off week, the father shall have parenting time from after school on Wednesday until 8:00 p.m. unless it is a hockey night in which case the father will return the child promptly after hockey is over. …

It is strongly recommended that the parties get to a pre-trial as soon as possible. [ 8 ] Mr. Miller, relying on the judgment of this Court in Gebert v Wilson , 2015 SKCA 139 , [2016] 5 WWR 656 [ Gebert ], argues that the Chambers decision should be set aside because the Chambers judge failed to give adequate reasons for it. We agree that his fiat is problematic on this front. The affidavits filed by Mr. Miller and Ms. Vevang are, in large part, deeply contradictory. In light of those contradictions, the basis for the Chambers judge’s conclusion as to the nature of the parenting status quo is opaque.

It is not apparent how he arrived at his view of that issue and hence came to his conclusion about the appropriate interim parenting regime. [ 9 ] More particularly, the Chambers judge appears to have accepted Mr. Miller’s averment that for periods of time in 2020 and 2021, he had parented the child “on an almost equal basis” but, in doing that, the Chambers judge did not explain why he declined to give effect to Ms. Vevang’s directly contradictory evidence that Mr. Miller’s parenting has always been “sporadic at best” and that the child had rarely spent as long as five to seven days with Mr. Miller.

Further, if the Chambers judge accepted Mr. Miller’s account of week on- week off parenting, in whole or in part, it is not clear why he was so broadly uncertain about how long that had carried on, given that Mr. Miller was relatively specific about the timeframes involved. It is certainly not the case, as stated by the Chambers judge, that there was “no indication” how long such arrangements had been in place. Further, the Chambers judge failed to observe that the only express consistency between the evidence of Mr. Miller and Ms.

Vevang is that, in the time leading up to the Chambers hearing, the child was residing with Ms. Vevang and spending every second weekend with Mr. Miller. [ 10 ] The Chambers judge’s failure to adequately explain his reasoning means that we must either (

a) remit this matter to the Court of King’s Bench to be reconsidered, or (

b) make our own assessment of the situation and put an appropriate order in place. In the interests of providing Mr. Miller and Ms. Vevang with a timely and cost-effective resolution of the issues they have raised, we have elected to take route (b). [ 11 ] As it turns out, our own analysis of the situation takes us to largely the same place as the one arrived at by the Chambers judge. The reasoning behind that conclusion is set out below. [ 12 ] Ms. Vevang avers that she and Mr. Miller separated in 2014, when the child was only six months old. For his part, Mr. Miller does not directly contradict Ms.

Vevang on this point. He says only that their “final separation” occurred in February of 2019. These descriptions of the situation are self evidently lacking in detail but, given the overall content and tone of the affidavits filed, it can be inferred that, from 2014 until 2019, the child lived with Ms. Vevang, and that Mr. Miller resided with them for unknown periods of time and parented the child with unknown frequency and for unknown lengths of time when he was living elsewhere. On this front, we note that Mr. Miller avers to nothing more than the very general notion that he and Ms.

Vevang would “share” parenting responsibilities during this timeframe. For her part, and as noted, Ms. Vevang says that Mr. Miller’s involvement and parenting has always been “sporadic at best”. Thus, overall, it is appropriate to conclude that Ms. Vevang was the primary caregiver for the child from 2014 to 2019 and that the child was primarily in her care during that time period. [ 13 ] Mr. Miller indicates that, beginning in February of 2019, Ms. Vevang made it difficult for him to have parenting time.

In his affidavit of July 19, 2022, at paragraphs 26 to 28, he implies that, through 2019 and into 2020, the child lived with Ms. Vevang and that he did not have much access to the child. Mr. Miller also avers in the same affidavit that, for three months following March 20, 2020, he did not see the child because of Ms. Vevang’s concerns about COVID but that, at some unidentified point, the situation “evolved” into an “ almost weekly parenting rotation where [the child] would be with [him] for anywhere from 5 to 7 days at a time” (emphasis added). Mr. Miller then goes on to say, at paragraph 32, that he and Ms.

Vevang parented the child “on an almost equal basis” in 2021 (emphasis added). As noted, Ms. Vevang directly contradicts all of this, saying that the child rarely spent five to seven days with Mr. Miller and that they had never had anything close to a shared parenting arrangement. At paragraphs 33 and following of his affidavit, Mr. Miller goes on to say that in early 2022 Ms. Vevang began putting roadblocks in the way of him seeing the child. Ms. Vevang disputes a good deal of his account of what happened during the months in issue. Finally, and to complete the relevant timeline, Mr. Miller and Ms.

Vevang agree that in May and June of 2022, leading up to the Chambers hearing, the child resided with Ms. Vevang and spent alternate weekends with Mr. Miller. [ 14 ] We appreciate that a parent should not be taken to have created a new parenting status quo by virtue of their unilateral actions in relation to a child.

However, even taking that principle into account, we conclude the affidavit evidence indicates that the status quo here should be taken as being the situation that prevailed prior to 2019 and that existed in the period leading up to the hearing before the Chambers judge, i.e., one where the child resides principally with Ms. Vevang and where Ms. Vevang has primary parenting responsibilities. The parts of the affidavit evidence relied on by Mr.

Miller to argue in favour of an equal parenting arrangement cannot reasonably be read as establishing an historical pattern of the kind of week-on and week-off type of arrangement that he urges us to impose and they are directly contradicted by Ms.

Vevang’s averments in a way that resists reconciliation or a determination that one version of the parenting story should be preferred over the other. [ 15 ] In the evidentiary circumstances here, and given the impossibility of resolving some of the conflicts in the affidavits, we believe that the status quo as it can be best determined should continue until the matters in issue can be sorted out at pretrial or, if necessary, at trial. We say this because it is well established that the parenting status quo should not be changed on an interim basis unless there is a compelling reason to do so.

See, for example: Gebert at para 13 . There is no such compelling reason here. [ 16 ] Accordingly, we order that Mr. Miller and Ms. Vevang have joint decision-making with respect to the child, that the child reside primarily with Ms. Vevang and that Mr. Miller have parenting time every second weekend, starting the weekend of December 2 to 4, 2022, from after school on Fridays to Sundays at 6:00 p.m. and, for long weekends, from after school on the last day before the weekend until 6:00 p.m. on the day before school resumes. We believe that, in addition, it is appropriate that Mr.

Miller parent the child from after school on the Wednesday of the week where he does not have weekend parenting time to 8:00 p.m. If the Wednesday happens to be a hockey night for the child, Mr. Miller shall return the child to Ms. Vevang after hockey. All of this can be varied if agreed by Mr. Miller and Ms. Vevang. [ 17 ] The Chambers judge did not address parenting during school holidays and on birthdays even though the issue had been raised by Ms. Vevang in her application. We direct that Mr. Miller and Ms. Vevang attempt to work out a holiday and birthday parenting schedule.

If an agreement is reached, it can be presented to the Court in the form of a consent order. If agreement is not possible, Mr.

Miller and Ms. Vevang will have to return to King’s Bench Chambers to have matters resolved. [ 18 ] By way of a post-script, we note that the record before the Court, including the fact that Mr. Miller is charged with impaired driving causing death, does not sustain Ms. Vevang’s position that she should have sole decision-making authority with respect to the child. Nor does the record support Ms. Vevang’s request for an order that Mr. Miller’s time with the child should be supervised. The charge he faces is serious but Ms. Vevang has not established that it, or Mr.

Miller’s behaviour more generally, warrants the imposition of unusual conditions on his parenting time. [ 19 ] Relatedly, given the very limited evidentiary record relating to the issue, we do not see the fact that Mr.

Miller might face a conviction and a period of incarceration, when it would be difficult to spend meaningful time with the child, as somehow justifying an arrangement that would see him having extended parenting time in the run-up to his trial. [ 20 ] Given that the bottom line of the parenting order in issue has not changed materially as a result of this appeal, we will make no order with respect to costs. “Richards C.J.S.” Richards C.J.S. “Leurer J.A.” Leurer J.A. “McCreary J.A.” McCreary J.A.