Ackerman v. Ackerman,

• Jurisdiction: Saskatchewan
• Judge: Ottenbreit, Caldwell and Ryan-Froslie, JJ.A.
• Neutral Citation: 2014 SKCA 86
• Citation: 2014 SKCA 86,(2014), 442 Sask.R. 113 (CA),[2014] 10 WWR 429,48 RFL (7th) 1,442 Sask R 113,(2014), 442 SaskR 113 (CA),442 SaskR 113,442 Sask.R. 113
• Court: Court of Appeal (Saskatchewan)
• Date: 27 June 2014

Ackerman v. Ackerman (2014), 442 Sask.R. 113 (CA);

    616 W.A.C. 113

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AU.025

Angela Beth Ackerman (petitioner/appellant) v. Brett Christopher Ackerman (respondent/respondent)

(CACV2442; 2014 SKCA 86)

Indexed As: Ackerman v. Ackerman

Saskatchewan Court of Appeal

Ottenbreit, Caldwell and Ryan-Froslie, JJ.A.

August 21, 2014.

Summary:

The parties met in 2005, began cohabiting in 2006, were married in January 2008 and separated in March 2011. Their children were born in September 2008 and September 2010. The wife petitioned for divorce. At issue was the appropriate parenting arrangement, spousal and child support and the division of property.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at (2013), 424 Sask.R. 187, granted a divorce and determined the remaining issues. The wife appealed regarding the parenting arrangement.

The Saskatchewan Court of Appeal dismissed the appeal.

Family Law - Topic 1891

Custody and access - Considerations in awarding custody - Conduct of parents - [See both Family Law - Topic 2082 ].

Family Law - Topic 1897

Custody and access - Considerations in awarding custody - Status quo - The parties separated in March 2011 - They shared joint custody of their two children (born in 2008 and 2010) - Since separation, the children had resided primarily with the mother with the father having parenting time - In June 2013, the court ordered shared parenting on a one week rotation - The mother appealed, asserting, inter alia, that the trial judge had erred by varying the status quo - The Saskatchewan Court of Appeal dismissed the appeal - There was no presumption in favour of the status quo - The status quo was a factor to be considered when determining the child's best interests and was to be weighed along with all of the other factors that might affect the child's best interests - See paragraphs 23 to 33.

Family Law - Topic 1897

Custody and access - Considerations in awarding custody - Status quo - The parties separated in March 2011 - They shared joint custody of their two children (born in 2008 and 2010) - Since separation, the children had resided primarily with the mother with the father having parenting time - In June 2013, the court ordered shared parenting on a one week rotation - The mother appealed, asserting, inter alia, that the trial judge had erred by varying the status quo - The Saskatchewan Court of Appeal dismissed the appeal - The court rejected the mother's argument that maintaining the status quo was important as it ensured structure and stability for the children - The change in a parenting arrangement did not necessarily equate to a lack of structure or stability - A parenting arrangement that decreased the number of exchanges might be conducive to establishing structure and stability - See paragraphs 34 to 36.

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - [See first Family Law - Topic 2082 ].

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - The Saskatchewan Court of Appeal discussed the standard of appellate review of child custody decisions - See paragraphs 13 and 14.

Family Law - Topic 1920

Custody and access - Appeals - Admission of "new evidence" - [See Practice - Topic 9031 ].

Family Law - Topic 2076

Custody and access - Joint custody - Principal home - [See second Family Law - Topic 2082 ].

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - The parties separated in March 2011 - They shared joint custody of their two children (born in 2008 and 2010) - Since separation, the children had resided primarily with the mother with the father having parenting time - In June 2013, the court ordered shared parenting on a one week rotation - The mother appealed, asserting, inter alia, that the trial judge had erred by ordering shared parenting given the parties' inability to communicate and the acrimony between them - The Saskatchewan Court of Appeal dismissed the appeal - The court rejected the father's assertion that s. 16(10) of the Divorce Act created a presumption in favour of shared parenting - Rather, it established the principle of maximum contact - The parties' acrimonious relationship was a factor to be considered in determining an appropriate parenting plan - Here, the trial judge found that the mother had exaggerated the conflict so that she could argue against shared parenting and had fuelled the conflict by her own actions - Given that situation, the trial judge found that the only way joint custody could be meaningful was through shared parenting - This was premised on his finding that it was in the children's best interests to have both parents active and present in their lives - Generally, shared parenting required a modicum of cooperation and communication - Here, there was evidence that the parties could cooperate - See paragraphs 37 to 51.

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - The parties separated in March 2011 - They shared joint custody of their two children (born in 2008 and 2010) - Since separation, the children had resided primarily with the mother with the father having parenting time - In June 2013, the court ordered shared parenting on a one week rotation - The mother appealed, asserting, inter alia, that the trial judge had erred by changing the children's primary residence from that of their primary caregiver - The Saskatchewan Court of Appeal dismissed the appeal - There was no presumption in favour of either parent - While the mother had been the children's primary parent, she was found to have "ratcheted up" the conflict between herself and the father as an excuse not to participate in shared parenting - The arrangement established by the trial judge maintained the mother as an integral part of the children's lives, but also allowed the children an opportunity to have a meaningful relationship with their father - See paragraphs 52 to 56.

Family Law - Topic 4171

Divorce - Practice - Appeals - Admission of new evidence - [See Practice - Topic 9031 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The parties separated in March 2011 - They shared joint custody of their two children (born in 2008 and 2010) - Since separation, the children had resided primarily with the mother with the father having parenting time - In June 2013, the court ordered shared parenting on a one week rotation - The mother appealed and applied to adduce fresh evidence on the appeal - The evidence related to post-trial activity of both parties - Its purpose was to establish that the parties continued to have an acrimonious relationship - The Saskatchewan Court of Appeal refused to admit the fresh evidence - Evidence of post-trial conduct was not relevant to the appeal - Further, it could not be said that the evidence would have affected the result at trial - See paragraphs 15 to 22.

Cases Noticed:

C.R.H. v. D.G. (2010), 362 Sask.R. 261; 500 W.A.C. 261; 2010 SKCA 127, refd to. [para. 14].

Wal-Mart Canada Corp. v. Labour Relations Board (Sask.) et al. (2006), 289 Sask.R. 20; 382 W.A.C. 20; 2006 SKCA 142, refd to. [para. 20].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 24].

Haider v. Malach (1999), 177 Sask.R. 285 (C.A.), dist. [para. 27].

C.R.L. v. R.E.L., [1998] Sask.R. Uned. 5 (Q.B. Fam. Div.), dist. [para. 37].

H.A.K.(W.) v. T.J.W. (2010), 351 Sask.R. 69; 2010 SKQB 128, dist. [para. 37].

Poirier v. Poirier (2011), 381 Sask.R. 111; 2011 SKQB 298 (Fam. Div.), refd to. [para. 37].

Gilles v. Gilles, [2008] 10 W.W.R. 610; 311 Sask.R. 223; 428 W.A.C. 223; 2008 SKCA 97, refd to. [para. 56].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 16(10) [para. 23].

Counsel:

James J. Vogel, for the appellant;

R. Bradley Hunter, Q.C., for the respondent.

This appeal was heard on June 27, 2014, by Ottenbreit, Caldwell and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. On August 21, 2014, Ryan-Froslie, J.A., delivered the following judgment for the court.