Court and Parties

Court of Appeal for Ontario Date: 2022-08-10 Docket: M53659 (C70851)

Between: Hasmik Tovmasyan, Applicant (Appellant/Moving Party) and Armen Petrosian, Respondent (Respondent/Responding Party)

Before: Brown J.A. (Motion Judge)

Counsel: Hossein Niroomand, for the moving party Alin Mayer, for the responding party

Heard: August 9, 2022 by video conference

Reasons for Decision

Overview

[1] Hasmik Tovmasyan and Armen Petrosian are the mother and father of twins, who are almost nine years old. The mother and father married in 2011 and separated in 2018. Litigation ensued.

[2] Following a five-day trial, by judgment dated June 8, 2022 (the “Judgment”), O’Brien J. ordered, pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), that the mother be permitted to relocate to California with the two children. The trial judge also set the amount of the father’s parenting time. Pursuant to the Family Law Act, R.S.O. 1990, c. F.3, the trial judge: (i) imputed income to the father and ordered that he pay retroactive and on-going child support based on that income; and (ii) imputed income to both the father and mother and ordered the father to pay retroactive and time-limited on-going spousal support to the mother based on those income calculations.

[3] The father has filed a notice of appeal from the Judgment.

[4] On this motion, the father seeks a stay of both the relocation and support elements of the Judgment.

[5] The mother very recently moved to California without the children in order to satisfy residence obligations required to obtain citizenship in the United States of America. The children presently reside with their father in Ontario.

[6] In Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 38 O.R. (3d) 448 (C.A.), at p. 449, this court articulated the test applicable to a request for a stay of an order or judgment pending the hearing of an appeal:

In determining whether a stay should be granted pending appeal, the appropriate test to be applied is that set out in RJR-MacDonald Inc. v. Canada, [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385. This test is the same as the test for an interlocutory injunction. Generally, the court must decide whether the interests of justice call for a stay.

In determining whether a stay should be granted, regard must be had to the judgment under appeal and a strong case in favour of a stay must be made out. The court must proceed on the assumption that the judgment is correct and that the relief ordered was properly granted.

[7] More recently, in D.C. v. T.B., 2021 ONCA 562, at para. 9, van Rensburg J.A. described the test for a stay pending appeal as applied in the context of an appeal from a decision-making/parenting time order:

Custody and access orders remain in effect pending an appeal to this court unless the court has ordered otherwise. In determining whether to stay an order involving the parenting of a child, the courts must consider: (1) whether, on a preliminary assessment, the appeal raises a serious question (recognizing that this is a low threshold); [(2)] whether the child will suffer irreparable harm if a stay is refused; and (3) the balance of convenience: namely whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal. The overriding consideration, again, is the best interests of the child. In other words, the court must be satisfied that it is in the child’s best interests to grant a stay: K.K. v. M.M., 2021 ONCA 407, at para. 17 and Lefebvre v. Lefebvre [(2002)], 167 O.A.C. 85 (C.A.), at para. 6.

Serious Question for Determination on the Appeal

[8] The father must demonstrate, through the record, that his appeal raises a serious issue for determination on appeal, in the sense that the appeal raises a serious question that the trial judgment is wrong: Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), at para. 6.

[9] The preliminary assessment of an appeal’s merits on a motion to stay often applies the low threshold that an appellant need only demonstrate that the appeal is not frivolous or vexatious. However, where, as a practical matter, the rights of the parties will be determined by the outcome of the stay motion, this court may give significantly more weight to the strength of the merits of the appeal: Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, 142 O.R. (3d) 481, at para. 10.

[10] In the present case, the long-term rights of the parties will be determined in due course by the panel hearing the appeal. However, that “due course” will take a number of months. The father has ordered transcripts of all the oral evidence given at trial. He makes no proposal to expedite the appeal. He offers no estimate as to when his appeal will be heard. Yet, if the Judgment is stayed during the time it takes the father to move his appeal to a hearing, the children’s living arrangements will be radically altered for a considerable period of time from those in place since their parents’ separation in May 2018.

[11] In light of the radical change to the children’s living arrangements that would result from granting a stay of the Judgment, it is appropriate to require the father to demonstrate, through trial-based evidence, that his appeal has more merit than simply not being frivolous or vexatious.

[12] The father has filed a very thin record to support his request for a stay. The record before me is limited: the notice of appeal; the reasons of the trial judge; an affidavit from the father that paints a different picture of family life over the past number of years from that found by the trial judge in her detailed reasons; and an updated Financial Statement. The mother filed an affidavit that updates her residence and employment situation. What is missing from the motion record is any of the evidence that was adduced before the trial judge.

[13] That is a significant omission from the record given the grounds of appeal raised by the father.

[14] The father’s notice of appeal lists 16 discrete grounds of appeal. As I read the notice of appeal, 12 of the grounds relate to the trial judge’s relocation order, while the other 4 relate to the orders regarding imputed income and the quantum of support. All are fact-related grounds of appeal, involving many questions of fact, with some questions of mixed fact and law. The grounds variously assert that the trial judge misapprehended certain evidence, erred in finding certain facts, erred in accepting the evidence of certain witnesses, and made findings of fact not established on the balance of probabilities.

[15] In the absence of extracts from the trial transcripts to demonstrate that the trial judge made palpable and overriding errors in respect of key factual findings, I am simply left with the father’s bald assertion in his notice of appeal that the trial judge committed errors, along with further assertions in his affidavit that the facts of the parties’ family life were different than those found by the trial judge.

[16] On the other hand, the record contains lengthy reasons by the trial judge, meticulously organized to place the review of the evidence and consequent findings of fact within each of the factors prescribed by the relevant statutes. The reasons clearly explain the basis for the findings of fact made by the trial judge.

[17] In the face of such reasons, it is not sufficient for an appellant to baldly assert that the trial judge got it all wrong and the result at trial should have been completely different. The appellant father has an obligation to provide some evidence-based demonstration that key findings of fact are tainted by palpable and overriding error in order to satisfy the first element of the stay test. On the record filed before me, the father has failed to do so.

Irreparable Harm

The relocation, decision-making, and parenting time elements of the Judgment

[18] Neither party filed the orders that were in place prior to the trial dealing with the decision-making and parenting time arrangements for the children. I therefore rely on the trial judge’s description of those legal arrangements found in her Reasons, at para. 6:

Following separation [in May 2018], the father had only supervised parenting time in part as a result of criminal charges against him. He was charged with seven counts of uttering threats, six counts of assault, and two counts of assault with a weapon. These charges were resolved by a peace bond in January 2019. In March 2019, the mother made further allegations, leading to additional charges, which were resolved by another peace bond in September 2021. Between November 2018 and October 2021, the father had only supervised parenting. The parties agreed to transition the father to unsupervised parenting time as of October 22, 2021 on a graduated schedule. From December 2021 to trial, the father had parenting time on alternating weekends from Saturday at 2:00 p.m. to Sunday at 6:00 p.m. [Emphasis added.]

[19] The orders made by the trial judge regarding decision-making and parenting time are found at para. 136 of the Reasons:

Pursuant to the CLRA:

Relocation

1. The mother shall be permitted to relocate with the children, to the state of California in the United States of America (“USA”) within one week of this Order.

2. The children shall continue to reside primarily with the mother. Beginning in the summer of 2022, the father shall exercise parenting time as follows: (a) Every Summer Break for up to 60 days exercised in Toronto, Canada, or as otherwise agreed to by the parties. (b) The duration of the children’s Christmas Break holiday exercised in Toronto, Canada, beginning in 2022 and in even years thereafter. (c) The duration of the children’s March Break holiday exercised in Toronto, Canada, beginning in 2024 and in even years thereafter.

3. The mother shall be responsible for arranging the children’s travel to the father at the start of parenting time set out at subparagraphs (a), (b), and (c) and for picking up the children following the father’s time.

4. The mother shall be permitted to exercise up to daily video and telephone access with the children during the father’s parenting time set out at subparagraphs (a), (b), and (c).

5. On 14 days’ notice, the father shall be permitted to exercise up to two weeks parenting with the children in California, USA, unless such parenting time conflicts with the children’s schedule and previously arranged activities. During any such parenting, the father shall ensure the children’s attendance at school and previously arranged activities.

6. The father shall be permitted to exercise up to daily video and telephone access with the children during the mother’s parenting time.

Decision-Making Responsibility

7. The mother shall consult with the father with respect to major decisions concerning the children. In the event of a disagreement, the mother shall have final decision-making authority.

8. The mother shall provide up-to-date lists to the father of all educational, extracurricular, and recreational programs in which the children are involved, and contact information for professionals involved with the children.

9. The father shall have the same right to all information relating to the children as the mother. [Underlining in original; bolding added.]

[20] Under paras. 136(2)-(3) of the Reasons, the father’s parenting time will increase significantly, with that parenting time exercisable in Toronto. Para. 136(5) provides for additional paternal parenting time in California.

[21] On this motion for a stay of the relocation portions of the Judgment, the father must demonstrate that, if a stay is not granted, the children will suffer irreparable harm: Lefebvre, at para. 6.

[22] I place little weight on the evidence contained in the father’s affidavit on this motion. As mentioned, his affidavit in large part paints quite a different picture of the children’s living arrangements and relationships with their parents than found by the trial judge. However, in the absence of any trial-based evidence in the record before me that would suggest the trial judge’s factual findings were tainted by palpable and overriding error, I give much more weight to those findings, which were the product of the trial judge seeing and hearing from both parents over the course of the trial.

[23] The trial judge’s findings included the following:

• It was in the best interests of the children to relocate to California with the mother: at para. 31;
• The children have a stronger bond with their mother: at para. 37;
• The father has a history of perpetrating family violence, which limited his periods of unsupervised access to the children: at paras. 38-40;
• In view of the father’s limited parenting time since separation, the mother has been responsible for almost all the parenting and the children have spent the vast majority of their time with her: at para. 48;
• The children would be devastated if their mother ceased to be their primary caregiver: at para. 55;
• The father has not demonstrated a consistent intention to be a primary caregiver for the children and he did not take full advantage of the parenting time available to him: at paras. 61-62;
• The overall impact of a relocation of the children to California would be positive. As the trial judge wrote, at paras. 83-84: In applying s. 24(6) [of the CLRA], I take into account that the children will not have regular parenting time with their father as they grow up. This is a loss. But considering all the factors, I find it to be in the children’s best interests to prioritize the allocation of parenting time with their mother, who has been their primary caregiver, and without whom they would be devastated. I find overall that the impact of a relocation to California would be positive for the children. In Toronto they spend the vast majority of their time with a parent who is clearly unhappy and struggling. They themselves are unhappy in their school, somewhat lonely, and do not have a larger network of friends and family to support them. Meanwhile, the evidence is that they love their extended family in California. [Emphasis added.]
• The mother’s relocation proposal was reasonable. As the trial judge stated, at paras. 86-87: The mother has made what I consider to be a reasonable proposal. First, she proposes that she continue to have decision-making authority. This is not only the status quo but is also reasonable considering the distance to California, the time change, and the parties’ inability to communicate effectively. She proposes that the father have parenting time in long stretches over holidays as described above. She has proposed that for this parenting time, she will be responsible for arranging the children’s travel to the father at the start of the parenting time and for picking the children up after. Although it will be difficult for the children not to see their father for long stretches, the mother’s proposal provides for up to daily video and telephone access with the children. Taking into account all the factors discussed above, and with a particular focus on the children’s physical, emotional and psychological safety, security and well-being, I find that it is in the best interests of the children to permit the mother to relocate with them to California in accordance with the parenting plan she has proposed. Therefore, the mother shall be permitted to relocate with the children and the father’s parenting time shall be as set out in the mother’s draft order.

[24] Consequently, I am not persuaded that the father has demonstrated the children would suffer irreparable harm if a stay of the Judgment was not granted.

The support orders

[25] As to the father’s request to stay the spousal and child support portions of the Judgment, the harm of which the father complains is monetary in nature. That kind of harm usually does not qualify as irreparable harm that would support the granting of a stay.

[26] However, the father deposes that he cannot afford to pay the ordered support, either the retroactive lump-sum payments or on-going monthly support, as he is experiencing “extreme financial hardship”. In support of those assertions, the father relies on his line 150 income on his 2021 notice of assessment and a post-trial Financial Statement dated July 26, 2022.

[27] I place little weight on that evidence for two reasons.

[28] First, the trial judge extensively reviewed the father’s financial disclosure and income. She held that the father was blatantly delinquent in meeting his disclosure obligations and had only made partial disclosure. She further held that the father’s line 150 income did not fairly reflect the money available to him and gave detailed reasons for that finding. Those findings lead me to view the father’s new financial evidence with great skepticism.

[29] Second, at trial the father used a March 25, 2022 Financial Statement that listed his debts as $30,581; Part 5 of his updated July 26, 2022 Financial Statement filed on this motion records no debts. The mother submits this indicates the father had sufficient resources to reduce his indebtedness since trial by approximately $30,000. The father contends the $30,581 entry was an error and should have read as $3,000. Suffice it to say that such a discrepancy re-enforces my view that I should treat the father’s new financial evidence with skepticism.

[30] Accordingly, I conclude that the father has not demonstrated that he would suffer irreparable harm if a stay of the support orders was not granted.

Balance of Convenience and the Overall Interests of Justice

[31] Given the conclusions that I have reached above, the balance of convenience and overall interests of justice in this case do not support granting the stay the father requests. The stay sought by the father would work a radical change in the living arrangements under which the children have grown up, where their mother has acted as their primary caregiver. The father has placed a very thin record before me, which does not support the radical change he seeks. To the contrary, the record does not disclose that his appeal raises serious questions about the soundness of the trial judge’s detailed and rigorously organized reasons and the orders she made on the relocation and support issues. Taken as a whole, the record leads me to conclude that granting a stay would not be in the best interests of the children.

Disposition

[32] As a result, I dismiss the father’s motion for a stay of the Judgment.

[33] The mother is entitled to her costs of this motion fixed in the amount of $6,000, inclusive of disbursements and applicable taxes, payable by the father within 30 days of the date of this order.

“David Brown J.A.”