Gebert v. Wilson, (2015) 467 Sask.R. 315 (CA)

• Judge: Jackson, Ottenbreit and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 27, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 467 Sask.R. 315 (CA);2015 SKCA 139

Gebert v. Wilson (2015), 467 Sask.R. 315 (CA);

    651 W.A.C. 315

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. DE.043

Jordana Rae-Anne Gebert (appellant) v. Eric Robert Wilson (respondent)

(CACV2761; 2015 SKCA 139)

Indexed As: Gebert v. Wilson

Saskatchewan Court of Appeal

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

October 27, 2015.

Summary:

Unmarried parents of a 4.5 year old child separated in early 2014, but continued to live in the same home until October/November 2014, when the mother moved out with the child. The mother gave the father access on alternating weekends and every Tuesday for one hour. In July 2015, 9.5 months after the mother moved out, the father applied for specified "parenting time". The mother argued that the status quo since the separation should not be varied on an interim basis. The chambers judge gave the father increased interim parenting time. No reasons were given. The mother appealed the interim order, arguing that, absent some "risk" to the child, the chambers judge erred in varying the status quo, failed to provide reasons for his decision, and failed to consider the best interests of the child.

The Saskatchewan Court of Appeal dismissed the appeal. The status quo related to the period when the parents were together, not the period immediately after separation. The principle that the status quo should not be varied on an interim basis did not apply here. The status quo in this case was that of two involved parents. The father was seeking increased parenting time, not a custody or primary residence change. Notwithstanding the chambers judge's failure to provide adequate reasons for his decision, this was not a basis for allowing the appeal where it was nonetheless possible from the record to determine that the order under review was in the child's best interests.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See first Family Law - Topic 1949 ].

Family Law - Topic 1946.1

Custody and access - Variation of custody and access rights - Interim order pending hearing of variation application - [See first Family Law - Topic 1949 ].

Family Law - Topic 1949

Custody and access - Variation of custody and access rights - Considerations - Status quo - Unmarried parents of a 4.5 year old child separated in early 2014, but continued to live in the same home until October/November 2014, when the mother moved out with the child - The mother gave the father access on alternating weekends and every Tuesday for one hour - In July 2015, 9.5 months after the mother moved out, the father applied for specified "parenting time" - The mother argued that the status quo since the separation should not be varied on an interim basis - The chambers judge gave the father increased interim parenting time - No reasons were given - The mother appealed the interim order, arguing that, absent some "risk" to the child, the chambers judge erred in varying the status quo - The mother also argued that the chambers judge erred in failing to give reasons for his decision - The Saskatchewan Court of Appeal dismissed the appeal - The status quo related to the period when the parents were together, not the period immediately after separation - The principle that the status quo should not be varied on an interim basis did not apply here - The status quo in this case was that of two involved parents - The father was seeking increased parenting time, not a custody or primary residence change - Notwithstanding the chambers judge's failure to provide adequate reasons for his decision, this was not a basis for allowing the appeal where it was nonetheless possible from the record to determine that the order under review was in the child's best interests.

Family Law - Topic 1949

Custody and access - Variation of custody and access rights - Considerations - Status quo - A mother appealed an interim order that increased the father's "parenting time", arguing that the trial judge erred in varying the status quo that arose in the 9.5 month period after separation - The Saskatchewan Court of Appeal, in discussing the principle of generally not varying the status quo on an interim basis, stated that "First, the principle ... does not displace the legislative requirement ... that in making decisions with respect to parenting arrangements, the paramount consideration is the best interests of the child. ... Second, the principle applies generally to changes in custody and primary residence, as opposed to changes in access. ... Usually, changes in access will not have the same profound effect on a child as changes in custody or primary residence. 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 if the child is at risk. ... In short, risk to the child is not the only reason for varying the status quo on an interim basis. ... 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. ... 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. ... The status quo during the parties' relationship was that of two involved parents." - See paragraphs 11 to 15.

Cases Noticed:

T.L.B. v. J.B.B. (2013), 417 Sask.R. 265; 580 W.A.C. 265; 2013 SKCA 84, refd to. [para. 8].

Graham v. Tomlinson (2010), 359 Sask.R. 251; 494 W.A.C. 251; 324 D.L.R.(4th) 156; 2010 SKCA 101, refd to. [para. 8].

Mantyka v. Dueck (2012), 399 Sask.R. 303; 552 W.A.C. 303; 2012 SKCA 109, refd to. [para. 8].

Jochems v. Jochems (2013), 417 Sask.R. 232; 580 W.A.C. 232; 2013 SKCA 81, refd to. [para. 8].

Guenther v. Guenther (1999), 181 Sask.R. 83 (Q.B. Fam. Div.), refd to. [para. 9].

Napper-Whiting v. Whiting (2014), 433 Sask.R. 235; 602 W.A.C. 235; 2014 SKCA 33, refd to. [para. 13].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 16].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 17].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 18].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 18].

Young v. Young (2003), 168 O.A.C. 186; 223 D.L.R.(4th) 113 (C.A.), refd to. [para. 18].

B.C. v. M.S. (2015), 438 N.B.R.(2d) 155; 1141 A.P.R. 155; 2015 NBCA 46, refd to. [para. 18].

Petrowski v. Waskul, [2003] 10 W.W.R. 65; 173 Man.R.(2d) 237; 293 W.A.C. 237; 2003 MBCA 65, refd to. [para. 18].

Rockall v. Rockall (2010), 490 A.R. 135; 497 W.A.C. 135; 2010 ABCA 278, refd to. [para. 18].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 20].

Counsel:

Beau Atkins, for the appellant;

Timothy Turple, for the respondent.

This appeal was heard on October 27, 2015, before Jackson, Ottenbreit, and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal.

On October 27, 2015, Ryan-Froslie, J.A., dismissed the appeal orally for the court, with the following reasons subsequently filed.