White v. Schultz

2023 BCCA 266 White v. Schultz

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: White v. Schultz, 2023 BCCA 266 Date: 20230621 Docket: CA48100 Between: David Gordon Bruce White Appellant (Claimant) And Lindsay Nicole Schultz Respondent (Respondent) Before: The Honourable Madam Justice Fenlon The Honourable Mr. Justice Hunter The Honourable Mr. Justice Butler On appeal from: An order of the Supreme Court of British Columbia, dated January 17, 2022 (White v. Schultz, 2022 BCSC 76, New Westminster Docket E47052). Oral Reasons for Judgment Counsel for the Appellant: A. Rebane Counsel for the Respondent: A.S.K. Wormeli J.K. Mangat Place and Date of Hearing: Vancouver, British Columbia June 8, 2023 Place and Date of Judgment: Vancouver, British Columbia June 21, 2023 Summary: The appellant appeals the dismissal of his application to vary the regular parenting time schedule for the parties' daughter. He also appeals an order setting out the holiday parenting time schedule, on the basis that the judge erred in finding that he had consented to its terms. Held: Appeal allowed in part. The judge did not err in declining to vary the regular parenting time schedule. The appellant has not demonstrated any material error of law or fact or that the decision was clearly wrong. While the parties were largely in agreement on the terms of the holiday parenting time schedule, they did not consent to the term relating to the

Thanksgiving holiday. That paragraph of the judge's order is set aside. [1] BUTLER J.A.: David White appeals the dismissal of his application to vary the regular parenting schedule for the parties' daughter, H. He submits, as he did in the court below, that the parenting schedule should be varied because it does not provide for equal parenting time now that H is in school full-time. Simply stated, he argues that parenting time for weekend and holiday days should be divided equally, and that the chambers judge erred in refusing to vary the existing parenting schedule, which divides parenting days equally over a two-week period. I would dismiss Mr. White's appeal of the order dealing with the regular parenting schedule, a discretionary decision to which a high degree of deference is owed. [2] Mr. White also appeals the terms of the order, described as being "by consent", that set out the holiday parenting schedule. He argues that the judge erred in concluding that he had consented to those terms. There is some merit to the appellant's contention that the judge misapprehended his position on that schedule, specifically with respect to the Thanksgiving holiday. I would set aside the judge's order regarding parenting time for the Thanksgiving holiday and substitute an order that divides the time equally. Background [3] The parties were married in 2005 and divorced in 2017. H is

their only child together and was eight years old at the time of the hearing of the application in issue. Since their separation, the parties have been involved in ongoing family law litigation that can fairly be described as high conflict, particularly in relation to being co-parents. [4] There have been numerous court orders in this case and I will summarize only those relevant to the present dispute. On January 30, 2017, Justice Voith (as he then was) issued a comprehensive consent order (the "Final Order") determining that the parties were to have equal parenting time annually (para. 17) and during holidays (para. 16). This order was made before H started attending school. Paragraph 13 of the Final Order set out a regular parenting schedule on a two-week rotating schedule. H is with her mother on Sundays, Mondays, and Tuesdays, and with her father on Wednesdays, Thursdays, and Fridays (a "4 - 4 - 3 - 3" schedule). She alternates between her parents' homes on Saturdays, along with the family dog. Paragraph 14 provides that in order to choose a school for H in 2018, the parties shall review the parenting schedule and enroll the services of a parenting coordinator. Paragraph 15 provides that the parenting schedule shall be reviewed as H's needs change. Paragraph 16 provides that the parties shall arrange a schedule for equal parenting time during H's school holidays. Paragraph

18 provides that certain enumerated statutory holidays shall be split equally by them, in a manner to be decided between the parties. Paragraphs 20 to 24 provide for the sharing of parenting time on Mother's Day, Father's Day, Christmas and New Year's Eve. [5] On September 20, 2021, Justice Shergill made an order determining which school H should attend (reasons indexed as 2021 BCSC 1835). The appellant wanted H to attend a school closer to his home in Burnaby and the respondent wanted her to attend a school closer to her home in Vancouver. The appellant has a physical disability as a result of a motor vehicle accident and consequently does not drive. Justice Shergill ordered that H attend the Vancouver elementary school proposed by the respondent. She also ordered the respondent to provide H's morning transportation to school during two of the appellant's parenting days. Chambers judge's reasons [6] In an order pronounced January 17, 2022, the judge dismissed the appellant's application to amend the regular parenting schedule set out in the Final Order. She also dismissed his application for fines and other remedies against the respondent, a ruling that is not challenged on appeal. The judge also amended the holiday parenting time schedule in para. 18 of the Final Order. She stated that this portion of her order, which included parenting on professional development days, was

by consent. Her reasons are indexed as 2022 BCSC 76. [7] In reaching her decision, the judge identified the central question on the application as whether varying the regular parenting schedule was in the best interests of the child. She noted that the parties had provided more than 1,600 pages of application materials, much of which focused on the school choice issue that had been decided by Justice Shergill only three months earlier. The judge reviewed the parties' affidavit evidence and their positions regarding the regular parenting schedule. She noted that the appellant's main contention was that the Final Order parenting schedule and the location of H's school in Vancouver made it difficult to arrange after-school and social activities for her, and that he had fewer weekend days with H than the respondent. She also noted the appellant's submission that the Final Order parenting schedule gave him little quality time with H and less opportunity to organize weekend outings, attend special events, and visit extended family together. [8] The judge acknowledged that she was required to consider H's physical, emotional and psychological safety, security and well-being and considered a number of factors relating to H's circumstances. I will review the judge's consideration of these factors below. After considering the factors in light of the evidence and submissions, the judge

found: [41] Based on the evidence before me, it appears that H. is overall a well‑adjusted child who is having no significant difficulties at school or at home and who is enjoying her activities and spending time with her half‑siblings. [42] While I appreciate the claimant's position that he has no regular parenting time with H. during both days of the weekend, which creates some limitations on their activities together, I do not find that there is any compelling evidence to suggest that the current regular parenting arrangement is failing to serve H.'s best interests or that the arrangement proposed by the claimant would better serve H.'s best interests. [9] She ultimately concluded that H's overall security and well-being was better served under the existing regime and that the regular parenting schedule in the Final Order should be maintained. Summary of the appellant's arguments Misapprehension of the appellant's application and the Final Order [10] The appellant argues that the judge erred in framing the central question as whether the parenting time schedule in para. 13 of the Final Order should be varied. He says it is mandatory that the para. 13 schedule be varied, as the Final Order provides that the parties should have equal regular and holiday parenting time. The appellant argues that because H is now in school, the para. 13 schedule gives the respondent more actual

time with H than he is afforded. It is therefore not currently equal. He says that para. 14 of the Final Order mandated a review of the para. 13 schedule prior to H starting school and that the only question before the judge was how to achieve an equal parenting time schedule. The appellant argues the judge incorrectly held that the parenting schedule already in place under the Final Order provided the parties with equal parenting time, when it did not. He also notes that at para. 21 of her reasons, the chambers judge conflated two of his four proposed parenting schedules by displaying the 4 - 4 - 3 - 3 schedule but describing it as a 5 - 2 - 2 - 5 schedule. Failure to apply Gordon v. Goertz principles and s. 16 of the Divorce Act [11] The appellant argues that the judge failed to consider the "maximum contact" principle that is provided for in s. 16(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [DA] and discussed in Gordon v. Goertz, [1996] 2 S.C.R.

27. He notes that the judge did not directly mention that principle and says the reasons do not reflect any consideration of a parenting schedule that would provide maximum contact for the appellant and H. The appellant also submits that the judge failed to consider how H's attendance at school has impacted the time she spends with the appellant and the stability of her relationships with him and his family. [12] The appellant also argues that the judge failed to consider s. 16(5) of the DA, which provides that the court shall not take a person's past conduct into consideration except as it is relevant to the exercise of their parenting time or decision-making responsibility. In support, he asserted in his factum that the judge failed to consider evidence of the respondent's "long-standing" alienation of H from the appellant and of her unreasonable refusal to comply or cooperate with parenting coordinators to review the parenting schedule. I need not consider either of these arguments as counsel for the appellant, who did not prepare the factum, resiled from these positions at the hearing of the appeal. He acknowledged, quite properly, that there was no basis on which to advance these arguments in light of the factual determinations made by the chambers judge. Misapprehension of evidence and submissions [13] The appellant's principal argument under this ground of appeal is that

the judge misapprehended his position regarding the holiday parenting schedule. He argues that it is evident from the positions he took in his notice of application and at the hearing that he did not consent to the holiday parenting schedule set out in para. 2 of the judge's order. Accordingly, he submits that the judge erred in varying paras. 18 to 23 of the Final Order. [14] In the appellant's factum, he advanced two other arguments based on alleged misapprehensions by the judge. He argued that the judge misunderstood his position on the issue of transportation to be provided by the respondent. He submitted that the judge erred in concluding that the question of how frequently the respondent should provide transportation for H was dealt with in Justice Shergill's September 20, 2021 order. Second, he argued that the judge failed to consider his disability and the reasonableness of his requests for accommodation in the form of his proposed regular parenting schedules. In particular, he argued that the judge failed to consider the benefit the respondent had received when the appellant's mother assisted with transportation for a period of three years. [15] None of these arguments were advanced by counsel at the hearing of the appeal. Counsel's approach was understandable, as both arguments lack merit. The chambers judge directly considered both issues. The appellant is asking

this Court to reweigh the same evidence and arguments presented before the court below and arrive at a different conclusion than was reached by the chambers judge. I need not address these points further. Standard of review [16] The primary grounds of appeal concern the judge's decision not to vary the regular parenting schedule as set out in the Final Order. There is no question that the judge's decision about parenting time was an exercise of discretion and that the applicable standard of review is highly deferential. This Court may not interfere with an exercise of discretion in the absence of a demonstrated material error of law or fact, a serious misapprehension of the evidence, or a decision that is "clearly wrong": Van de Perre v. Edwards, 2001 SCC 60 at paras. 13-15; Fotsch v. Begin, 2015 BCCA 403 at para.

66. Although this standard of review is not unique to parenting appeals, it supports the crucial interest of finality that is, as noted in Van de Perre, "particularly important for the parties and children involved in custodial disputes": at para.

13. Analysis [17] As I will explain, it is my view that the appellant is not able to demonstrate that the judge erred in law or fact in a material way, or that she misapprehended the evidence. Further, the judge did not fail to understand or consider his arguments as alleged. The judge clearly grasped and dealt with the central argument advanced by the appellant: that the existing parenting schedule as set out in the Final Order does not provide for equal parenting time (which is required by the Final Order) because adherence to the 4 - 4 - 3 - 3 schedule (which was established before H attended school) means that he does not have equal time with her on weekends and on holidays. The judge considered the evidence before her and the appellant's submissions and dismissed the application to vary. On appeal, he asks us to come to a different conclusion by reconsidering the arguments advanced in the court below and weighing the evidence differently. That is not the function of this Court, and certainly not on an appeal of this nature. [18] However, I agree that the judge did misapprehend the appellant's position in relation to holiday parenting time. The judge understood that the parties agreed that paras. 18 to 23 of the Final Order, which deal with that subject, should be varied to reduce disputes between the parties, as set out in para. 47 of the reasons. She stated that the parties were in "general agreement" with a proposal advanced by the respondent: at para.

46. However, examination of the submissions at the hearing indicates that the appellant did not agree on the division of parenting time over the Thanksgiving holiday. Accordingly, he cannot be said to have consented to all of the terms of the judge's order. As discussed below, I would allow the appeal to the limited extent of varying the holiday parenting schedule to provide for equal division of Thanksgiving holiday parenting time between the parties. Did the judge err in finding a material change in circumstances? [19] Before dealing with the appellant's central arguments, I note that he also submits that the judge erred in concluding that H's full-time attendance at school was a material change in circumstances that allowed the judge, pursuant to s. 17(5) of the DA, to consider varying the parenting order. Rather, he says the judge should have concluded that the respondent breached paras. 13-17 of the Final Order by refusing a review and revision of the parenting schedule when H began full-time school. He further argues that the respondent's breach amounts to a material change in circumstances. [20] There is no merit to this submission. It is, in any event, of no consequence as the appellant was himself seeking a variation of the parenting schedule, albeit based on a different view of what constituted a material change in circumstances. The judge, with reference to Justice

Shergill's reasons, set out the parties' unsuccessful attempts at revising the parenting schedule with two parenting coordinators. The judge recognized that the parties had agreed to review the parenting schedule in 2018, and found that, in any event, there had been a change in circumstances since the Final Order was made. In other words, the judge properly recognized that there was a basis for considering the variation application. Did the judge misapprehend the appellant's application and the Final Order? [21] The appellant argues that the judge misapprehended the position he took in the court below and that she also misunderstood the requirements of the Final Order. He submits that these errors permeate the decision and undermine her reasoning in dismissing his application to vary parenting time. [22] The appellant points in particular to para. 17 of the judge's reasons, where she states there is no dispute that "there is presently a regular parenting schedule that provides the parties with equal parenting time". The appellant says this misapprehends his position because his central argument was that parenting time was no longer equal when H started full-time school. He says that there is a difference between parenting time and parenting days. While the existing schedule allows for equal parenting days in a two-week schedule, it does not provide for equal parenting time

because H is in school for more of his parenting days than for the respondent's parenting days. He says that to provide for equal parenting time, the weekend and holiday parenting days have to be divided equally. [23] The appellant further argues that the judge's failure to understand his position and the concept that parenting time, as opposed to parenting days, must be equal, led her to make an order that is inconsistent with para. 17 of the Final Order. That provision states that "despite any other term in this agreement, H shall have equal parenting time with each party annually ". [24] I do not see any merit in this argument. The appellant's position as to the proper interpretation of the terms of the Final Order and the correct way to divide parenting time are driven by his view that equality can only be achieved through a schedule that equally divides the time spent with each parent on weekends and week days, and not by dividing the days in a two-week period equally. There is no question that the judge could have approached the equal division of parenting time in the way he suggests. However, para. 17 of the Final Order does not require that parenting time be divided in that fashion. It is self-evident that the requirement for H to have "equal parenting time with each party annually" could be satisfied in a variety of different ways. There is no single correct approach

to establishing a parenting schedule that would meet that requirement. For the reasons described by the judge, she maintained the existing 4 - 4 - 3 - 3 schedule to effect an equal division of parenting time in light of the best interests of the child. Contrary to the appellant's submissions, the order is not inconsistent with para. 17 of the Final Order, nor does it fail to divide parenting time equally. [25] The appellant also points to what he characterizes as a palpable error at para. 21 of the reasons, where the judge states that the appellant is proposing a 5 - 2 - 2 - 5 schedule but purports to demonstrate his proposal by setting out a 4 - 4 - 3 - 3 schedule. I agree that the judge's description of the appellant's proposal in that paragraph is inaccurate and somewhat confusing. The appellant is correct that his position at the outset of the application was for a 5 - 2 - 2 - 5 parenting schedule. However, in the course of argument before the chambers judge, the appellant put forward the 4 - 4 - 3 - 3 schedule that is reproduced at para. 21 of the reasons. This occurred because, as often happens in these applications, the parties put forward alternative proposals as the hearing proceeded. [26] In my view, the judge's misstatement of the appellant's alternative proposal is not an overriding error. It is evident from the reasons as a whole that the judge clearly understood

the appellant's central position; he wanted the regular parenting time schedule to be varied so that the respondent did not have more weekend parenting time than him. The judge considered his proposals, including the 5 - 2 - 2 - 5 schedule and the alternative 4 - 4 - 3 - 3 schedule, and rejected them based on her analysis of the evidence and submissions regarding H's best interests. Did the judge fail to apply Gordon v. Goertz principles and s. 16 of the Divorce Act? [27] These arguments also lack merit. The judge did not refer specifically to Gordon v. Goertz and did not set out the provisions of s. 16 of the DA. However, a judge is presumed to know the law. A failure to refer to a statutory provision or a relevant authority is of no consequence, provided there is nothing in the judge's reasons demonstrating a lack of knowledge: E.R.H. v. B.W.H., 2009 BCCA 573 at para.

38. Here, the judge correctly noted that "the only consideration for a court in making a parenting order is the best interests of the child": at para.

13. It is evident from a review of the judge's reasons that she considered the case law to which she was referred and specifically considered the factors relevant to a determination of the best interests of the child. [28] At para. 36 of her reasons, the judge noted (in accordance with s. 16(2) of the DA) that she was required to give primary consideration to H's physical, emotional and psychological safety, security and well-being. She provided her analysis of the evidence as it related to the factors set out in the relevant subsections of s. 16(3) of the DA, which I would summarize as follows: a) H's needs given her age and stage of development. The evidence suggested that H was adaptable and well-adjusted in the circumstances provided for in the Final Order; b) H's relationship with the parties and her extended family. The judge noted H's good relationship with the parties and her younger siblings. She held that there was insufficient evidence to determine the cause or extent of H missing out on socializing with extended family on the appellant's side; c) Each party's willingness to support H's relationship with the other party. The judge noted that neither party was denying the other parenting time as provided for in the Final Order, and that the respondent in fact agreed to assist the appellant in exercising his parenting time; d) The history of H's care. The judge found

that despite some conflicts, the current parenting arrangement accommodated H's needs; e) H's views and preferences. The judge found that H had expressed no strong views or preferences to suggest that the current parenting arrangement was no longer in her best interests; f) Each party's ability to care for and meet H's needs. The judge found that the parties were successfully accommodating H's needs and circumstances; and g) The parties' ability and willingness to communicate and cooperate on matters affecting H. The judge noted recent progress in the parties' ability to cooperate on matters affecting H's best interests. She pointed to the respondent's agreement to support the appellant's parenting time by transporting H to school on several of the appellant's parenting days and was of the view that this was done in recognition of his disability. [29] The judge did not specifically refer to s. 16(6) of the DA, the so-called maximum contact principle, which provides that the court "shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child". However, she reviewed the considerable evidence before her about H's activities, the time spent with each parent, the quality of time with her parents, and her relationships with both sides of her family. The judge's analysis on this point clearly satisfies

the "maximum contact" principle, as she considered the effect that varying the order might have on H's relationship with both parents, with a view to making an order that gave each parent significant parenting time and was in H's best interests. Contrary to the appellant's argument, there is no basis to conclude that the judge did not consider relevant factors and evidence. Did the judge misapprehend the appellant's position regarding the holiday parenting schedule? [30] The appellant applied to introduce fresh evidence on this issue in the form of his affidavit attaching transcripts of the hearings before the judge. Since that application was filed, the respondent has consented to having the transcripts from the hearings before the judge on November 1 and 19, 2021 admitted on appeal. Accordingly, I need not consider the fresh evidence application. [31] The appellant raises a number of issues with para. 2 of the judge's order dealing with holiday parenting time, which is stated to be "by consent". [32] First, he notes that he did not apply to vary the parenting schedule for Christmas and New Year's Eve (paras. 22 and 23 of the Final Order), but rather only applied to vary para. 18 of the Final Order. The terms of the judge's order and the Final Order respecting Christmas and New Year's Eve are identical, and so practically speaking, this part of the Final Order has not been

varied. [33] Second, he argues that he did not consent to the following terms in the judge's order: a) Paragraph 2(a)(iii): parenting time on professional development days being exercised in accordance with the regular parenting schedule; b) Paragraph 2(a)(iv): equal division of Easter (the appellant having Friday until 10:00 a.m. on Sunday and the respondent the rest of the holiday); c) Paragraph 2(a)(v): the division of Thanksgiving (the appellant having after school on Friday until 10:00 a.m. on Sunday, and the respondent the rest of the holiday); d) Paragraph 2(a)(vi): parenting time on other statutory holidays being exercised in accordance with the regular parenting schedule; and e) Paragraph 2(a)(vii): no make-up parenting time to accommodate the holiday schedule. [34] The order could not be entered because of the appellant's position on the holiday parenting schedule. Consequently, the parties appeared before the judge on January 4, 2023 to settle the terms of the order. Almost a year had passed since the judge released her reasons and more than 10 months had passed since the notice of appeal was filed. The judge ruled that if there had been an error with respect to her understanding of what had or had not been consented to, that would be a matter for the Court of Appeal. She held that it would be inappropriate for her to settle the order inconsistently with the reasons

for judgment, which indicated that holiday parenting time was determined by consent. [35] Before dealing with the substance of the appellant's argument, I would observe that it is unfortunate this issue was not raised promptly when the reasons were issued. Had the appellant raised this issue before the notice of appeal was filed, it may have been possible for the parties to resolve the dispute over the holiday parenting schedule. As the order had not been entered, the judge was not functus. A judge retains a broad discretion (to be exercised sparingly) to permit a proceeding to be re-opened if the original decision was in error because evidence was overlooked or misconstrued or the law was misapplied: Sykes v. Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.); Bajwa v. Habib, 2020 BCCA 230 at para.

48. Quite properly, the chambers judge did not embark on re-opening as the matter was under appeal and the appellant was challenging an important finding: that the order was by consent. [36] When I review the transcript of the proceedings on November 1 and 19, 2021, it is apparent to me why the judge thought that the appellant was in general agreement with the proposed schedule. The submissions made by counsel are less than clear and he did express "general" agreement, and indeed indicated his client's agreement to specific terms of the proposed schedule. Nevertheless, I agree with the appellant that he did not take the position in the court below, and counsel did not indicate to the court, that the parties agreed on the division of parenting time over the Thanksgiving holiday. Accordingly, para. 2(a)(v) of the order is not accurate; the appellant did not consent to that term. [37] The appellant argues that the appropriate remedy for the judge's misapprehension is to substitute the order he sought in the court below for holiday parenting time. However, that remedy would not reflect the concessions made by counsel in the court below. It is my view that the proper remedy is to make an order that accurately reflects the consent expressed in the court below and, for the Thanksgiving parenting schedule, to make an order that provides equal parenting time to the parties. I would make

this order because the parties did agree to holiday parenting time for all other holidays and it would be contrary to the interest of finality and to the just, speedy, and inexpensive determination of family disputes to remit this one question to the court below. [38] In the hearings before the judge, counsel for the appellant expressed consent to a number of the terms proposed by the respondent. Counsel for the appellant informed the judge that the parties agreed on a holiday parenting time proposal for professional development days, stating, "Professional Development days, that's fine. I think we agree on that". The specific proposal that they agreed to was to let the professional development days "fall where they fall" on the regular parenting schedule. Counsel for the appellant also stated that Easter weekend was agreed upon, specifically that the appellant would have Friday until Sunday at 10:00 a.m., and the respondent would have Sunday at 10:00 a.m. until the end of the holiday. Appellant's counsel also agreed with the proposal that holidays not listed in the order should be spent with the parent whose parenting day falls on that date. [39] Appellant's counsel noted that the parties disagreed about the mother's proposal for Thanksgiving, but stated, " other than that I think they're - they're relatively aligned. They say let's leave everything else the same". Later in

the hearing, he said that, "the father's position on Thanksgiving is that it should fall where it does on the regular parenting schedule, but there's no sort of specific Thanksgiving position". The respondent had proposed dividing Thanksgiving so that the appellant had after school on Friday until Sunday at 10:00 a.m., and she had Sunday at 10:00 a.m. until school started again on Tuesday. The judge ultimately adopted the respondent's proposal. [40] Given the judge's misapprehension about counsel's agreement, or lack thereof, regarding Thanksgiving parenting time, I would allow the appeal but only in that regard. I would set aside para. 2(a)(v) of the judge's order and, for the Thanksgiving weekend, I would order that the appellant have parenting time with H from after school on Friday until 2:00 p.m. on Sunday, and the respondent have parenting time from 2:00 p.m. on Sunday until drop off at school on Tuesday morning. In my view, this divides the parenting time for Thanksgiving weekends equally. Disposition [41] I would dismiss the appeal of the order dealing with the schedule for the regular parenting time. I would allow the appeal of the holiday parenting order but only to vary the Thanksgiving schedule as I have outlined in para. 40. [42] FENLON J.A.: I agree. [43] HUNTER J.A.: I agree. [44] FENLON J.A.: The appeal is allowed only to the extent of varying the Thanksgiving parenting schedule in accordance with the reasons for judgment. "The Honourable Mr. Justice Butler"