Mryglod v Tarling, 2023 SKCA 26

Court of Appeal for Saskatchewan Docket: CACV4050 Citation: Mryglod v Tarling , 2023 SKCA 26 Date: 2023-02-22 Between: Christopher Mryglod Appellant (Petitioner) And Jessica Tarling Respondent (Respondent) Before: Schwann, Leurer and McCreary JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice McCreary In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Leurer On appeal from: FLD 49 of 2009, Saskatoon Appeal heard: January 19, 2023 Counsel: Heather D. Funk for the Appellant Jessica Tarling on her own behalf McCreary J.A. I.

INTRODUCTION [ 1 ] This is an appeal from an interim order of a Court of Queen’s Bench judge, sitting in Chambers, in which he determined there was no material change in circumstance that justified the variation of a final parenting order: Mryglod v Tarling (30 June 2022) Saskatoon, FLD 49 of 2009 (Sask QB) [ Chambers Order ]. [ 2 ] The parties, Christopher Mryglod [father] and Jessica Tarling [mother], are the parents of one daughter, now 15 years old [child].

On May 6, 2011, the parties entered into a consent judgment that provided for shared parenting of the child on a rotating weekly basis [ 2011 Parenting Order ]. The child was then 4 years old. [ 3 ] In October of 2021, when the child was 14 years old, the father brought an application to vary the 2011 Parenting Order so that the child’s primary residence would be with him, with the child having parenting time with the mother every second weekend.

The father contended that, after the issuance of the 2011 Parenting Order , a material change had occurred which justified a variation because the child was now ten years older and had expressed her preference, through a Voices of the Child assessment [Voices Report], to live primarily with him. [ 4 ] The Chambers judge found there was no material change that justified a variation of the 2011 Parenting Order . Consequently, he did not consider whether a change in the parenting regime was in the child’s best interests.

However, the Chambers judge did order the child, as well as the mother and her partner, to attend counselling. [ 5 ] The father appeals on the bases that: (1) the Chambers judge erred in concluding that there was no material change in the child’s circumstances; and (2) the Chambers judge exceeded his authority by ordering that the mother’s partner attend counselling. [ 6 ] For the reasons that follow, I would allow the appeal. The Chambers judge overlooked material evidence and erred in principle by finding that a material change in the child’s circumstances had not been established.

When the child’s preferences, along with the conditions which inform those preferences, are taken into account, a material change is demonstrated so as to justify considering whether varying the shared parenting arrangement is in the child’s best interests. As this assessment should occur on the basis of the most current evidence available, I would refer the matter of the child’s best interests to the Court of King’s Bench for determination. II. STANDARD OF REVIEW [ 7 ] The standard of review applicable to appeals from interim orders respecting parenting is deferential.

This Court will only intervene if it is established that the Chambers judge failed to correctly identify or misapplied the legal criteria that governed the exercise of their discretion, including by failing to give any or sufficient weight to a relevant consideration, or if the Chambers judge made a palpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to consider material evidence. This Court cannot intervene simply because it would have made a different decision or would have balanced the relevant factors in a different way than the Chambers judge.

See: Gebert v Wilson , 2015 SKCA 139 at para 8 , 467 Sask R 315; Bolan v Bolan , 2013 SKCA 97 at paras 6–7 , 423 Sask R 151; L.P. v Z.M. , 2021 SKCA 134 at para 31 ; Seidel v Seidel , 2021 SKCA 92 at para 1 ; K.G.K. v L.T.K. , 2021 SKCA 12 at para 4 ; A.M.D. v M.R.M. , 2021 SKCA 71 at paras 30–32 ; T.C. v A.E. , 2021 SKCA 79 at paras 25–27 ; and Kot v Kot , 2021 SKCA 4 at para 20 , 63 ETR (4th) 161.

III. ANALYSIS A. Material change was established [8] To vary a final parenting arrangement, a party must establish a material change affecting the child’s circumstances. A two-stage inquiry is applied. The reviewing judge must first determine whether there has been a change in the circumstances of the child.

If amaterial change is established, the reviewing judge must then consider whether the material change is such that the best interests of thechild require a variation of the order and, if so, the nature of the variation: Gray v Wiegers, 2008 SKCA 7 at para 13, 291 DLR (4th) 176[Wiegers]. [9] The material-change threshold is not met by “the slightest change” (J.W.C. v K.D.H., 2022 SKKB 237 at para 17). To satisfythe change aspect of the threshold, the child’s current circumstances must be a distinct departure from what the court could reasonablyhave anticipated when the existing parenting order was granted.

To meet the materiality aspect of the threshold, the child’s circumstancesmust have altered in a fundamental way since the granting of the extant parenting order. See: Gordon v Goertz, (SCC),[1996] 2 SCR 27; L.M.P. v L.S., 2011 SCC 64, [2011] 3 SCR 775; and A.M. v Ministry of Social Services, 2020 SKCA 114.

A change incircumstances may be material if it is reasonably long-lasting in nature. [10] In this case, the father argued that a material change was established because ten years had passed since the 2011 ParentingOrder was made, the parties now reside in different places, both had re-partnered, and the child was now old enough to express her wishesand had done so through a Voices Report in which she said that she wished to live with her father. The mother contended that no materialchange was demonstrated. [11] The Voices Report indicated that the child disliked the existing week-on/week-off schedule.

She wanted to have more timewith her father, to reside primarily with him and his family, and to spend every second weekend at her mother’s home. The assessorconcluded that the child had not romanticised life with her father, as she was required to take on more responsibility at his home than ather mother’s. The Voices Report further disclosed that there was tension between the child and her mother and her mother’s partner, thatthe child had difficulty communicating with her mother and that she was at risk of becoming overwhelmed by “sadness”.

On the otherhand, the child enjoyed the family dynamic in her father’s household, where she also lives with a half-sibling (the child of her father’s newmarriage). The child viewed her father’s household as a happier environment and wanted to live there more permanently. [12] The Chambers judge was not satisfied that a material change was established. He identified the “main change” alleged by thefather as being that the child was “now considerably older than when the [2011 Parenting Order] was made”.

He also observed that thefather had “cited no case law to support the notion that a change in a child’s age can form a material change in circumstances” (at para 18).The Chambers judge then quoted at length from several authorities, including Wiegers. While he acknowledged that the child had maturedand it was clear from the Voices Report that she wanted to live with her father, he concluded that the passage of time and the child’swishes were not determinative. He noted that, despite the child’s express wishes, the court should be “more concerned with fosteringstability”.

The Chambers judge further expressed concern that, if he gave effect to the child’s wish, this would lead to a “slippery slope”of teenage children asking for variations and overwhelming the system (at para 49). [13] With respect, the Chambers judge overlooked material evidence and erred in principle by too narrowly construing what factorscan establish a material change.

While Wiegers stands for the proposition that the increased maturity of a child does not, by itself,constitute a material change of circumstances, this simply means that the passage of time does not automatically trigger a material change.A judge is still obliged to assess the nature of the changes that have occurred over time and to determine whether they have fundamentallyaffected the child’s circumstances: Wiegers at para 23. [14] One factor that may, together with a child’s increased maturity, give rise to a material change is where a child has expressed awish to live with one parent over the other.

In this province, in Probe v Grohs, 2013 SKQB 360 at para 3, 430 Sask R 236, Sandomirsky J.found that, where a 16-year-old child had made a “rational choice and expressed the desire to make the proposed change”, a materialchange in circumstances was established. By way of further example, in D.M. v M.M., 2022 SKQB 44, Brown J. found that the children’sincreased ages and their expressed preferences for a particular parenting arrangement constituted a material change.

While heacknowledged that the mere aging of a child does not, by itself, establish a material change, he concluded that the expressed desires of thechildren (through a Voices of the Child assessment), along with the fact that one child had transitioned genders, constituted a materialchange. [15] Courts in other provinces have similarly concluded that a child’s increased maturity, together with their expression ofpreference, can constitute a material change in the child’s circumstances.

Again, by way of example, in Giroux v Buss, 2010 BCSC 965,the British Columbia Supreme Court found that there had been a material change in the child’s needs and circumstances due to conflictbetween the parties and the child’s expressed desire to spend more time with his father. More recently, in J.D.C. v S.L.C., 2015 BCSC1938, both parties conceded, and the Court agreed, that a material change had been established on the basis that the children had maturedto the point that their voices should be heard.

In that case, the children had been too young to express a view when the original parentingarrangement was established. Further, in Albers v Albers, 2011 ABQB 456, 7 RFL (7th) 207, the Alberta Court of Queen’s Benchconcluded that the expressed desire of the 12-year-old child to reside with the father was sufficient to constitute a material change incircumstances. In that case, the parents had divorced when the child was about 5 years old.

In Ontario, it would appear that the trial-levelcourts have generally held that a child’s expressed preference respecting the parenting arrangement may amount to a material change incircumstances sufficient to vary a parenting order. See, for example: Wood v Greer-Wood, (Ont Sup Ct) at para 55;Gill v Chiang, 2011 ONSC 6803 at para 51, 16 RFL (7th) 252; Oickle v Beland, 2012 ONCJ 778 at para 51; Kavaner v Jancsurak, 2012ONCJ 543 at paras 27–28; Fraser v Logan, 2012 ONSC 4087 at para 56; Gloger v Gloger, 2014 ONSC 379 at para 63; and E.O. v O.E.,2019 ONCJ 921 at paras 46 and 61.

Factors informing the question of material change may include: the current age and maturity level ofthe child; the age of the child when the existing parenting arrangement was established; whether the child’s expressed preference hasremained consistent; whether the child’s preferred residence has appropriate rules and responsibilities; and, whether the child was coercedin any way. See: Oickle at paras 51 and 55; Kavaner at paras 27–28; Fraser at para 62; and E.O. at para 61.

[ 16 ] In this case, the previously quoted statement by the Chambers judge that the “main change” alleged by the father was that the child had aged since the 2011 Parenting Order appears to have led him to overlook that the evidence of change was broader than just the passage of time and the child’s wish to live with her father. In fact, the evidence established the following material changes in the child’s circumstances, which served to inform her wish to live primarily with her father and her best interests more generally: (

a) The child had aged ten years and was now a teenager; (

b) Both parents had re-partnered and the child was now required to live and interact with another parental figure during her parenting time with each parent; (

c) Both parents had changed residences; (

d) The child’s commute to school when living with her mother was 80 minutes each way. This made it more difficult for the child to connect in-person with school friends during her parenting time with her mother, which was increasingly important to the child now that she was a teenager; (

e) There was tension in the child’s relationship with her mother and the child had difficulty communicating with her; (

f) There was tension in the child’s relationship with her mother’s partner; (

g) The child was experiencing emotional difficulties, including “sadness”. This was of sufficient concern to the Voices Report assessor that he recommended the child attend personal counselling (and the Chambers judge accepted this recommendation and ordered same); (

h) The child had expressed a desire to live with her father, rather than rotating her residence between parents. The child indicated in the Voices Report that she viewed her father’s home as being more stable or “normal”, and she wanted that stability; and (

i) The child’s father and his new partner had a son. When the child lived with her father, she enjoyed a sibling relationship with the son, and the family dynamic of a two-child household. [ 17 ] It is of note that the situation that had developed over time between the mother and the child had become sufficiently fraught that, as part of his order, the Chambers judge directed the child, the mother, and the partner of the mother to all attend counselling.

The Chambers judge expressed the view that this counselling “will provide the family with needed resources and assistance to start to heal the relationship between [the mother] and [the child] and provide them with strategies to handle situations that may arise” (at para 57). [ 18 ] Viewing this evidence cumulatively, it establishes that there are changes that sufficiently affect the child’s circumstances so as to justify a finding of a material change in circumstance and to engage in a consideration of whether it is in her best interest to vary the 2011 Parenting Order .

An error in principle led the Chambers judge to find otherwise. B. The Chambers judge exceeded his authority by ordering a non-party to attend counselling [ 19 ] As already noted, one aspect of the Chambers judge’s order was that the mother’s partner attend counselling. With respect, he erred in law in making this order. The mother’s partner was not a party to the proceedings and the Chambers judge did not have the authority, pursuant to The Children’s Law Act, 2020 , SS 2020, c 2 , or otherwise, to make an order involving a non-party. IV.

CONCLUSION [ 20 ] In the result, I would allow the appeal. [ 21 ] The Court was advised by the parties that after the notice of appeal was filed in this matter, but before the appeal was heard, the parties had several appearances in the Court of King’s Bench respecting the enforcement of the 2011 Parenting Order . These appearances resulted in the court imposing terms to enforce the 2011 Parenting Order , and ordering counselling for the child.

Given these developments, the question of whether it is in the child’s best interests to vary the parenting arrangement should be remitted to the Court of King’s Bench for its consideration, rather than this Court assessing the matter on evidence which may not be sufficiently current. [ 22 ] There will be no order for costs. “McCreary J.A.” McCreary J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Leurer J.A.” Leurer J.A.