Gray v. Wiegers,

• Jurisdiction: Saskatchewan
• Judge: Lane, Richards and Smith, JJ.A.
• Neutral Citation: 2008 SKCA 7
• Court: Court of Appeal (Saskatchewan)
• Date: 20 September 2007
• Citation: 2008 SKCA 7,(2008), 307 Sask.R. 117 (CA),291 DLR (4th) 176,[2008] 4 WWR 225,47 RFL (6th) 1,[2008] CarswellSask 10,[2008] SJ No 12 (QL),307 Sask R 117,417 WAC 117,291 D.L.R. (4th) 176,[2008] S.J. No 12 (QL),307 SaskR 117,417 W.A.C. 117,307 Sask.R. 117,(2008), 307 SaskR 117 (CA)

Wiegers v. Gray (2008), 307 Sask.R. 117 (CA);

      417 W.A.C. 117

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. JA.011

Stephanie Gray (formerly Wiegers)

(appellant) v. Vincent Sylvester Wiegers (respondent)

(No. 1418; 2008 SKCA 7)

Indexed As: Wiegers v. Gray

Saskatchewan Court of Appeal

Lane, Richards and Smith, JJ.A.

January 17, 2008.

Summary:

A father applied to vary a custody order in respect of the two children of the marriage. He sought to vary the arrangement with respect to the oldest child (Angela, now almost 17 years old) and to share equally in the parenting of the youngest child (Morgan, 9 years old) based on a seven day rotation.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at 291 Sask.R. 48, ordered that the parties continue to have joint custody of Angela and Morgan. Any time Angela spent with each parent was her choice. The court set out a new parenting schedule for Morgan. The mother appealed the order with respect to the new parenting schedule for Morgan.

The Saskatchewan Court of Appeal allowed the appeal.

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - A father applied to vary a 2001 custody order - He sought to vary the arrangement to share equally in the parenting of the youngest child (Morgan, 9 years old) based on a seven day rotation - He argued that Morgan was much older than when the order was granted and she should spend more time with him - The chambers judge held that there had been a material change in the circumstances of Morgan, even if only by virtue of her growing maturity - The Saskatchewan Court of Appeal allowed the mother's appeal - The mere passage of time and increased maturity of the child did not, in and of itself, constitute a material change of circumstance as is required by s. 17(5) of the Divorce Act - While the reviewing judge could take into account that a child's needs could change as he or she matured, it was necessary to go further to determine whether and to what extent those changes had made the original order inadequate.

Family Law - Topic 4064

Divorce - Corollary relief - Custody of children - Variation of custody order - [See Family Law - Topic 1947 ].

Cases Noticed:

Talbot v. Henry (1990), 84 Sask.R. 170; 25 R.F.L.(3d) 415 (C.A.), refd to. [para. 13].

Wilson v. Grassick, [1994] 6 W.W.R. 570; 120 Sask.R. 1; 68 W.A.C. 1 (C.A.), refd to. [para. 14].

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. 15].

Elliott v. Loewen (1993), 44 R.F.L.(3d) 445 (Man. C.A.), dist. [para. 21].

V.E.L. v. L.E.L., [1996] O.J. No. 1284, refd to. [para. 22].

McLeod v. Impey, [2003] Sask.R. Uned. 92; 123 A.C.W.S.(3d) 714; 2003 SKQB 167 (Fam. Div.), refd to. [para. 24].

E.S. v. D.E.H. (2007), 300 Sask.R. 48; 160 A.C.W.S.(3d) 1024; 2007 SKQB 231, refd to. [para. 24].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17 [para. 12].

Counsel:

Gwen V. Goebel, for the appellant;

James A. Morrison, for the respondent.

This appeal was heard on September 20, 2007, by Lane, Richards and Smith, JJ.A., of the Saskatchewan Court of Appeal. The following judgment was delivered for the court by Smith, J.A., on January 17, 2008.