THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 168 Date: 20041213 Between: Docket: 1041 Nicole Clavelle and Joseph Paul Clavelle Coram: Tallis, Cameron and Lane JJ.A. Counsel: Lori L. Gollan for the Appellant Tiffany M. Paulsen for the Respondent Appeal: From: Div. 004689 of 2002, J.C. of Battleford Heard: December 13, 2004 Disposition: Appeal dismissed (Orally) Written Reasons: December 14, 2004 By: The Honourable Mr. Justice Tallis In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Lane TALLIS, J.A. (Orally) [1] We do not need to hear from you, Ms. Paulsen. [2] We are all of the opinion that this expedited family law appeal must be dismissed. [3] The appellant Nicole Clavelle appeals from an order of Ryan-Froslie J. which directed that Danelle, the daughter of the parties, shall attend kindergarten in Saskatoon during the seven week period before the trial fixed for February 21, 2005. For convenience we reproduce the following passages from her written reasons: pre-trial management conference is set for October 5, 2004, after which trial date will be set. It is likely that the trial will proceed in December, 2004 or January, 2005. It must be kept in mind that the application for variation does not relate to final order, but rather an interim one. Interim orders are meant to be temporary until the matter can properly be adjudicated. Counsel for both parties acknowledged in argument that joint custody with an equal sharing of time should continue pending trial. As such, there is no need to vary the interim order. The real issue is where Danelle will attend kindergarten. As indicated above, this matter will be proceeding to trial within the next three to four months. Subject to the parties reaching different agreement, there shall be an order that Danelle continue in kindergarten in North Battleford up to and including December, 2004. Commencing in January, 2005, Danelle shall attend kindergarten in Saskatoon. The evidence discloses that Danelle is happy, well-adjusted child. do not anticipate any problems with her adjusting to change in schools in January and it will give her the opportunity to make friends in both of the communities where her parents reside. Mr. Clavelle’s move to Saskatoon will impact the terms of the final order with regard to the parenting issue. Danelle’s primary residence, and where she will attend school, will need to be resolved prior to her entering Grade 1. That is matter that should be left to the trial judge. The parties indicated they would be able to work out an equal sharing of Danelle’s time once they know where she will be attending kindergarten. If they are unable to do so, they shall have leave to bring this matter back before me by telephone conference within 30 days. If the matter is brought back before me, Danelle’s proposed school schedules, as well as any extra-curricular activities and the parties’ work schedules, should be provided. [4] This order is essentially discretionary order in protracted family law litigation. In such circumstances the Court should not interfere with discretionary order unless it is clearly wrong or is founded on wrong principle of law. The controlling standard of review is succinctly stated by Cameron J.A. in Attorney General of Canada v. [L. (G.)] 2004 SKCA 137 (CanLII): [17] The order was made in the exercise of discretionary power, fact that serves to narrow the basis for intervention on appeal: Only if the chambers judge abused his discretion by acting on some wrong principle, by disregarding some material matter of fact, or by failing to act judicially, is the Court of Appeal at liberty to interfere. Either that or the result must be so plainly wrong as to invite intervention on that basis: Rimmer v. Adshead, 2002 SKCA 12 (CanLII), [2002] W.W.R. 119. Also see Boston v. Boston, 2001 SCC 43 (CanLII), [2001] S.C.R. 413 at para. 73. [5] Applying this test to the impinged order we find that no such error has been demonstrated. Accordingly the appeal must stand dismissed. [6] The award of costs in Queen’s Bench that was challenged on this appeal must be affirmed for the same reason. [7] We cannot part from this case without observing that enormous resources have been expended by the parties in contest to determine where the child Danelle shall attend kindergarten for two days per week during seven week period before trial. We observe that the interest of the parties and their daughter Danelle would have been better served if they had devoted their time and resources to much earlier trial of this matter in Queen’s Bench. This action which was commenced in 2002 is finally proceeding to trial on February 21, 2005. While the order made may be of some inconvenience to the parties this does not constitute reversible error. [8] It is not our function to “fine tune” orders of this nature particularly when they are of such short duration. We have reviewed the voluminous affidavit evidence in the record and find no misuse of judicial discretion. The order under attack is considered attempt to manage the situation for short period before trial. [9] Furthermore, this Court has signalled its reluctance to interfere with the discretion of a chambers judge when dealing with matters of this nature. In Foss v. Foss (1991), 1991 CanLII 7937 (SK CA), 31 R.F.L. (3d) 367 (Sask. C.A.), Madam Justice Gerwing, speaking for the Court at p. 368 stated: Two general comments should be made with respect to this type of application. First, this Court is extremely reluctant to interfere with the discretion of chamber or trial judge with respect to questions of interim maintenance. Second, the most desirable thing in almost every instance is to proceed as rapidly as possible to trial so that the matter can be determined finally after full examination of all of the relevant evidence. Also see Lapoor v. Navidi (2000), 2000 SKCA 95 (CanLII), 14 R.F.L. (5th) 125. [10] We dismiss this appeal with costs on double Col. 5. [11] The respondent’s motion under Rule 15 is now moot. Accordingly it is dismissed as moot with no costs to either party. [12] Since we addressed the appeal proper on its merits, the motion to “quash” is dismissed as moot with no costs to either party.
The appellant appeals from an order that directed that the daughter of the parties shall attend kindergarten in Saskatoon during the 7 week period before trial. HELD: Appeal dismissed orally. 1) No error was demonstrated. 2) This Court has signalled its reluctance to interfere with the discretion of a chambers judge when dealing with matters of this nature.