Nicole Giesbrecht Appellant (Respondent) v. Justin Michael Stettner, 2023 SKCA 52

Court of Appeal for Saskatchewan Docket: CACV4126 Citation: Giesbrecht v Stettner, 2023 SKCA 52Date: 2023-05-02 Between:Nicole GiesbrechtAppellant (Respondent)AndJustin Michael StettnerRespondent (Applicant)Before: Caldwell, Barrington-Foote and Kalmakoff JJ.A.Disposition: Appeal allowedWritten reasons by: The CourtOn appeal from: FLD-SA-00153-2016 (Sask KB)Appeal heard: April 17, 2023Counsel: T.F. (Ted) Koskie for the Appellant Anna Singer and Lauren Scharfstein for the Respondent The Court [1] Nicole Giesbrecht and Justin Stettner are the parents of a child.

On May 13, 2016, shortly after they stopped cohabiting, Mr.Stettner filed a petition under The Children’s Law Act, 1997, SS 1997, c 8.2, repealed and replaced by The Children’s Law Act, 2020, SS2020, c 2. Ms. Giesbrecht filed her answer and counter-petition on June 30, 2016. In December 2016, they attended a pre-trial conferencebefore Turcotte J., which resulted in a consent parenting order (Stettner v Giesbrecht (6 January 2017) Saskatoon, FLD No 153 of 2016(Sask QB) [2017 Order]).

Clause 11 of that order states that: “[t]he parenting arrangement shall be reviewed without the need for materialchange before [the child] begins attending Kindergarten”. [2] When the child was seven years old and attending second grade, Mr. Stettner brought an application in the Court of King’sBench seeking the following relief:

a) Direction from this Honourable Court on whether the petitioner may apply for a review of parenting of the child…pursuant toclause 11 of [the 2017 Order], without the need for a material change, despite the fact that the review was not brought before [the child]began attending Kindergarten. [3] In a flysheet fiat (Stettner v Giesbrecht (13 December 2022) Saskatoon, FLD-SA-00153-2016 (Sask KB) [2022 Fiat]), aChambers judge interpreted clause 11 and directed that a review of the parenting arrangement could proceed without the need to provethat a material change in circumstances had occurred, writing: This matter is set over to Friday, January 6, 2023 at 10:00 a.m. for the purpose of debating a new parenting plan.

The petitioner father is toserve and file his material by December 21, 2022. The respondent is to serve and file her reply material by December 30, 2022. I leave theissue of costs to the Judge hearing that debate. Clause 1 of my order is clause 11 of the judgment of Justice Turcotte, dated January 6, 2017, provided for review of parentingarrangements respecting the child, [redacted], without the need for material change. It contemplated that such application would take placein or around the time the child… was attending Kindergarten.

Clause 2, notwithstanding the delay, the fact that the petitioner now brings the application, does not change the essence of the agreement.Specifically, there is no need to prove material change to address a review of the parenting arrangements. [4] In the formal order taken out on the basis of the 2022 Fiat, the Chambers judge’s

interpretation of clause 11 of the 2017Order was set out as follows: 1. Clause 11 of the Judgment of Justice Turcotte dated June 6, 2017 provided for review of parenting arrangements respecting thechild, [redacted], without the need for material change. It contemplated that such application would take place in or around the time thechild, [redacted], was attending Kindergarten.

Notwithstanding the delay, there is no need to prove material change to address a review ofthe parenting arrangements. [5] The straightforward issue in this appeal is whether the Chambers judge misinterpreted clause 11 of the 2017 Order when heruled that Mr. Stettner’s application to review the parenting arrangements could proceed without proof of a material change incircumstances. [6] The

interpretation of a court order is not governed by the subjective views of the parties. An issue on appeal as to whether acourt decision or order has been properly interpreted by a judge gives rise to a question of law (Hertz v Kille, 2023 SKCA 3 at para 15).The rules for interpreting the meaning of a court order are set out in cases like Pratt v Johnson, (SCC), [1959] SCR 102;Hertz v Kille; Onion Lake Cree Nation v Stick, 2020 SKCA 101, [2021] 2 WWR 614; Campbell v Campbell, 2016 SKCA 39 at paras 15–17, [2016] 8 WWR 631; Sutherland v Reeves, 2014 BCCA 222, 61 BCLR (5th) 308; and Yu v Jordan, 2012 BCCA 367, 354 DLR (4th) 8.In

summary, a judge who is interpreting a court order must not do so in a vacuum but instead must consider the language of the order inthe context of the pleadings, the proceedings in the action that led to the order, the circumstances surrounding the making of the order, and

the reasons given for making the order, if any. [ 7 ] In this case, the pleadings include the petition and answer/counter-petition. For his part, Mr. Stettner sought joint custody and access, alleging that Ms. Giesbrecht had left the family home with the child and that he had not had access since then. Ms. Giesbrecht sought joint custody and primary residence but stated that she was “not agreeable to a shared parenting arrangement” given Mr. Stettner’s work

schedule and hours of work. She plead that she had allowed Mr. Stettner “graduated access” to the child and proposed a two-week custody rotation, wherein the child would have access to her father from Thursday at 7:00 p.m. to Saturday at 12:00 p.m. during the first week and from Friday at 10:00 a.m. to Sunday at 7:00 p.m. during the second. Ms. Giesbrecht said that such an arrangement was in the child’s best interests because it accommodated both parents’ work schedules and allowed the child to alternate her weekends with them.

That arrangement is largely mirrored in the 2017 Order . [ 8 ] The child was one-and-a-half years old at the time of the 2017 Order . The order is a consent order that addresses all the family property, parenting, spousal support and child support issues between the parties in a final way. In addition to clause 11, the 2017 Order grants joint custody and decision-making, with the child primarily residing with Ms. Giesbrecht. It addresses the child’s access to Mr. Stettner, with reference to his work schedule, and determines with whom the child would spend holidays. Clause 7 provides that Mr.

Stettner “shall request and [Ms. Giesbrecht] will not reasonably refuse additional parenting time on ‘rainy days’ or other days when he is not required to work” and, under clause 8, both parents “shall have the right to be caregivers of first resort to the other”. [ 9 ] In the context of the 2017 Order , the language in issue under clause 11 is clear: “the parenting arrangement shall be reviewed without the need for material change before [the child] begins attending Kindergarten”. As it is a consent order, no reasons were given by Justice Turcotte.

The matter of the child’s attendance at kindergarten was not addressed in the pleadings and, if it was discussed at the pre- trial conference, the order leaves it unresolved. However, as it was issued by consent, the 2017 Order must be taken to reflect an agreement between the parties that Ms. Giesbrecht would be the primary parent at least until the child was set to attend kindergarten and that the parenting arrangement would be reviewed at that time without the need to establish a material change in circumstances.

That is, the review was tied to a milestone in the child’s life when the coordination of her attendance at kindergarten with parenting and work schedules would be at issue in any event. Given that the child was years away from kindergarten at the time, there was also a greater likelihood that Mr. Stettner’s work schedule, which was a factor addressed in the pleadings, might have changed in the meantime. [ 10 ] At bottom, it is clear that the Chambers judge did not err when he found that the 2017 Order “provided for review of parenting arrangements respecting the child… without the need for material change”.

However, it was an error to interpret it as contemplating “that such application would take place in or around the time the child… was attending Kindergarten” (emphasis added). In the ordinary sense of the language, the order plainly contemplates that the review would occur before the child started kindergarten. Nothing in the pleadings or the surrounding circumstances suggests a different

interpretation. [ 11 ] Under the correct

interpretation of clause 11, the purpose of the review was to allow the parties to assess the parenting arrangements in advance of the child starting kindergarten. This is supported by the pleadings and relevant contextual factors. The “essence of the agreement” was not that the parties could review the parenting arrangement without establishing a material change. As the child was in Grade 2 at the time of Mr. Stettner’s application, the milestone of starting kindergarten had come to pass and any adjustments to the parenting arrangements necessary to address that major change in the child’s life had been made.

At that point, clause 11 of the 2017 Order was spent by the effluxion of time. As a spent order, it was not within the Chambers judge’s discretion to revive it or to enlarge the time fixed to bring a review.

Moreover, it was not within his authority to relieve either party of the substantive requirement of establishing a material change in circumstances before the parenting arrangements could be revisited by the Court. [ 12 ] In the result, we allow the appeal, set aside the 2022 Fiat and direct that, if the matter of the child’s parenting arrangements is to be considered by the Court of King’s Bench, that it be done in the normal course under an application to vary the 2017 Order as a final order.

In these circumstances, we make no order as to costs. “Caldwell J.A.” Caldwell J.A. “Barrington-Foote J.A.” Barrington-Foote J.A. “Kalmakoff J.A.” Kalmakoff J.A.