Saskatchewan Appeal Court takes rare step of quashing an interim parenting order | #parenting | #parenting | #parenting | #kids

A recent ruling out of Saskatchewan shows Appeal Courts are willing to take the unusual step of intervening in an interim parenting order if there is a “fundamental issue” impacting the best interests of children, says a lawyer.The June 22 Court of Appeal for Saskatchewan decision in Seidel v. Seidel 2021 SKCA 92 involved Elysse and Chad Seidel, who married in 2009 and went on to have two children — one in 2012 and another in 2014.

The couple separated in November 2018, with Chad moving out of the family home around a month later. In April 2019, after each obtaining legal advice, the Seidels entered into a separation agreement, including the parenting time that each would have with the kids.

The agreement had the kids residing primarily with their mother. Their father would have them three weekends a month.

But in March 2020, Chad formally sought a divorce and an order for corollary relief. With this, the couple was headed to a pretrial conference and possibly a trial.

Chad also sought, on an interim basis, an equal sharing of parenting time on a week-on, week-off basis. He maintained that the original agreement had been designed to fit his full-time work schedule and Elysse’s part-time work. He also said the agreement was to save on childcare costs.

However, he said, the kids’ school schedules had changed, with both having entered full-time schooling and now participating in after-school activities.

According to the written appeal decision, Chad said he “would like to be more involved with the children’s school work and school activities; however [he does] not have the opportunity with the current access schedule of weekends only”.

Elysse objected, saying she had had primary responsibility for the children and that her schedule allowed her to both get them off to school and meet them when the school bus returned them home. She said they were “accustomed to the agreed upon parenting arrangement”. She also noted parenting decisions by Chad that she said were of concern to her.

The chambers judge noted the positions of both sides, including Chad’s argument that “the presumption is that it is in the best interests of the children to maximize time with each parent.” The judge also found that “some transition would be appropriate” now that “both [children] will be in full-time school.”

With this, he made an order to gradually increase parenting time for Chad to the point of eventual fully shared parenting.

Elysse appealed to the Appeal Court, which found the judge to have made the wrong call.

Justice Robert Leurer, with Justices B.A. Barrington-Foote and Jeffery Kalmakoff in agreement, found that such an alteration from the original agreement represented “a fundamental change to the status quo arrangements for the parenting of the children.”

“The parties agree that after Mr. Seidel left the family home, the children lived with Ms. Seidel,” wrote Justice Leurer. “Although the parties presented somewhat different calculations as to the division of time the children spent with each parent, after the Agreement was entered, the undoubted status quo was that the children’s primary residence was with Ms. Seidel. It was at her home that the children most often slept. It was from her home that the children left for school and returned each school day. At the point the interim order had been made in late July 2020, this status quo had prevailed for 19 months, if measured from the date of separation, or 15 months, if measured from the date of the Agreement. Therefore, the effect of the order made by the Chambers judge is to alter the primary residence of the children. This change is not a mere adjustment to existing access arrangements. … [I]t was open to the Chambers judge to order this change only if the children were at risk or there was another compelling reason to do so.”

Justice Leurer turned to Gebert v. Wilson 2015 SKCA 139, a prior decision of the Appeal Court, which found that “changes in custody and primary residence have a profound effect on children.”

Justice Leurer noted “the parties agreed that the children were doing well under the existing parenting arrangements.” He felt that any final changes to parenting time should be made either during a pretrial conference — or a trial, if necessary.

“To be certain, Mr. Seidel expressed a strong desire for more parenting time and argued that his desire aligned with the children’s best interests. He may prevail at trial in establishing that a shared parenting arrangement is in their best interests. However, there is nothing on the record to establish a compelling reason — or indeed, any reason — to change the status quo on an interim basis until the matter can be finally resolved at trial.”

Michael Scharfstein, Scharfstein Gibbings Walen Fisher LLP

Elysse Seidel’s lawyer, Michael Scharfstein, of Saskatoon’s Scharfstein Gibbings Walen Fisher LLP, said the ruling “affirms a number of things that might get lost from time to time in … the rough and dirty interim application stage.”“From an appeal standpoint, it’s important that the Court of Appeal affirmed their typical standpoint — that we’re not going to step in and change interim orders made in chambers; we’re going to give a lot of deference to Queen’s Bench judges when they do these. But, in limited circumstances, we’ll make a change when there is some sort of fundamental issue with the Chambers decision. … The Court of Appeal is affirming their long-held position on appealing interim orders in discouraging it but allowing it when there is something that cries out for appellant intervention.”

He also said it speaks to the importance of maintaining the status quo for children.

“On the more substantive side of things, I think it’s important that it affirms this long-held belief in the court system that the status quo is very important and that when you’re dealing with interim orders, which are by nature imperfect, the status quo will carry a lot of weight. It’s important that when a chambers judge is looking at an interim order, they give appropriate attention to what … the children [are] used to.”

A request for comment from Chad Seidel’s lawyer was not immediately returned.

If you have any information, story ideas or news tips for The Lawyer’s Daily, please contact Terry Davidson at t.davidson@lexisnexis.ca or call 905-415-5899.

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