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CUSTODY AND ACCESS - Practice and procedure - Appeals and judicial review

Thursday, April 27, 2017 @ 8:29 AM  


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Application by the mother for leave to appeal two orders of the Court of Queen’s Bench sitting as an appeal court under the Family Law Act. The parties were in a relationship for two and one-half years and their daughter was born in 2011. For more than two years, the parties proceeded under a consent order pursuant to which they agreed to share parenting time. When the applicant lost her job, she moved to Ontario and the parties entered into a consent order in February 2016 that allowed for two-weeks-on, two-weeks-off parenting between Ontario and Alberta, on the premise the applicant would return to Alberta. In October 2016, after a hearing during which the parties relied on viva voce evidence, the Provincial Court ordered that the daughter would reside with the applicant in Ontario, as the applicant had decided she was not returning to Alberta. The father appealed the decision to the Court of Queen’s Bench. The Court of Queen’s Bench held that the trial judge erred by failing to consider whether there had been a material change in circumstances and allowed the parties to submit additional affidavit evidence on the issue. The Court of Queen’s Bench then found that there had been no change in circumstances and overturned the trial decision. A parenting arrangement was not determined. The applicant sought leave to appeal, submitting that the appeal judge did not meet the standard of review and that the trial judge’s finding that there had been a significant change in circumstances was entitled to deference. The applicant also submitted that the appeal judge had no jurisdiction to order affidavit evidence on the same evidence that was before the trial judge in viva voce testimony, and argued that the appeal judge erred by substituting his own factual findings for those of the trial judge. In addition, the applicant argued that the appeal judge erred in law by finding a material change in circumstances was required from an interim order.

HELD: Application allowed. The application satisfied the test for permission to appeal. There was an important question regarding when the change of circumstances test had to be considered and what order was the baseline against which the material change in circumstances was to be measured. Whether the appeal judge erred in his interpretation of the material change of circumstances test was a question of law reviewable for correctness. The question of whether the appeal judge applied the correct standard of review with respect to the trial judge’s findings of fact was also a question of law reviewable for correctness. There was also a reasonable argument that the trial judge was not required to consider whether there had been a material change of circumstances, if it could be said that the February 2016 consent order was an interim order or that it contemplated future review. In addition, the respondent was not going to be unduly prejudiced by the continuation of the child’s living arrangement while the appeal proceeded. Application for leave to appeal was granted on the questions of 1) whether the February 2016 consent order was an interim order, 2) whether the trial judge erred in law in finding that a change of circumstances was required to vary the consent order, 3) whether the appeal judge erred in law in selecting the appropriate standard of review, and if not, whether he correctly applied it, 4) whether the trial judge erred in law in substituting his own findings of fact for those of the trial judge, and 5) whether the appeal judge erred in law or jurisdiction in ordering the parties to provide further evidence via affidavit when the same evidence was already before the trial judge as viva voce testimony.

Wandler v. Crandall, [2017] A.J. No. 359, Alberta Court of Appeal, J.D.B. McDonald J.A., April 13, 2017. TLD-Apr242017009