Zettl v. Spence, 2016 SKCA 97

• Judge: Caldwell, Herauf and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 18, 2016
• Jurisdiction: Saskatchewan
• Citations: 2016 SKCA 97;(2016), 484 Sask.R. 193 (CA)

Zettl v. Spence (2016), 484 Sask.R. 193 (CA);

    674 W.A.C. 193

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. AU.016

Benjamin Arthur Gary Zettl (appellant/respondent/applicant) v. Cara Julie Anne Spence (respondent/petitioner/respondent)

(CACV2675; 2016 SKCA 97)

Indexed As: Zettl v. Spence

Saskatchewan Court of Appeal

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

August 3, 2016.

Summary:

The parties negotiated minutes of settlement regarding the parenting of their school-aged child. The minutes of settlement were incorporated into a consent order that stipulated the terms of the parties' joint custody, including primary residence with the mother in Regina, with access to the father in Saskatoon, three consecutive weekends per month. Very shortly thereafter, the mother relocated, with the child, to Warman. The father applied to vary the consent order, seeking a shared parenting arrangement (week-on/week-off basis).

The Saskatchewan Court of Queen's Bench, Family Law Division, held that the mother's impromptu relocation with the child had constituted a material change in the child's circumstances, but that it was not in the child's best interests to vary the parenting arrangements. The father appealed on the grounds that the judge erred: by making a final order in the presence of conflicting affidavit evidence; by failing to take into consideration the "maximum contact" principle as set out in s. 6(5)(a) of the Children's Law Act; and by failing to follow the custody and access report.

The Saskatchewan Court of Appeal dismissed the appeal on all grounds.

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - The chambers judge declined to vary the parenting arrangements established under a consent order - On appeal, the father submitted that the judge erred by failing to take into consideration the "maximum contact" principle as set out in s. 6(5)(a) of the Children's Law Act - The Saskatchewan Court of Appeal held that the ground of appeal was meritless - In his written reasons, the judge said he was "mindful of" what he characterised as the "maximum exposure" principle, describing it as allowing "a child ample time with each parent" - It was implicit in the judge's conclusion that he saw the father's shared-parenting proposal as having the effect of diminishing the amount of time the child would spend with each of his parents versus the status quo - That was sufficient reason for the judge to have properly rejected that proposal - There was no material error, serious misapprehension of the evidence, or an error in law underpinning the judge's decision in that regard - See paragraphs 68 to 70.

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - A chambers judge dismissed the father's application to vary the parenting arrangements established under a consent order - On the father's appeal, the evidentiary record played a significant role - The Saskatchewan Court of Appeal discussed the standard of review - "In an appeal from an application determined on the basis of affidavit evidence alone an allegation of error of fact is measured against the standard of reasonableness ... , and the express statutory instruction in The Court of Appeal Act ... . The same standard applies to the issue as to whether there was sufficient uncontroverted evidence upon which to render a decision in an application of this nature ... . That is, this Court will look to the evidence, the issues at play, the relief sought, the arguments - as framed by the parties - and the best interests of the children to determine whether it was reasonable for a chambers judge to conclude that 'the evidentiary threshold necessary to make a decision based on all the uncontroverted evidence had been reached.' Moreover, the judge's review of the evidence and the weight given to that evidence in the family law context is given 'considerable deference' ... " - See paragraphs 54 to 56.

Family Law - Topic 1950.1

Custody and access - Variation of custody and access rights - Changed circumstances of the child - A chambers judge dismissed the father's application to vary the parenting arrangements established under a consent order - On appeal, the father alleged that the judge erred by making a final order in the presence of conflicting affidavit evidence - Rather, the judge should have set the matter of a variation of the parenting arrangements over for a pre-trial conference or a viva voce hearing - The Saskatchewan Court of Appeal found little merit to that argument for these reasons: "(a) the judge had the jurisdiction and authority to make a final decision in this case; (b) there was sufficient evidentiary basis for the judge to determine that a material change in the child's circumstances had occurred and to properly assess the best interests of the child as a result of that change; and (c) litigants must put their best foot forward and nothing here suggests [the applicant father] did not do that." - See paragraphs 57 to 67.

Family Law - Topic 1959

Custody and access - Variation of custody and access rights - Evidence - [See Family Law - Topic 1950.1 ].

Counsel:

Deryk Kendall, for the appellant;

James J. Vogel, for the respondent.

This appeal was heard on May 18, 2016, before Caldwell, Herauf and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. In reasons written by Caldwell, J.A., the Court delivered the following judgment, dated August 3, 2016.