Court File and Parties

COURT FILE NO.: 530/03

DATE: 20030903

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

KRISTINE JODI DIANNE DAVIS

Plaintiff

• and -

MARK CLEMENT NUSCA

Defendant

Counsel:

Linda Meldrum, for the Plaintiff

D. Smith and William H. Abbott, for the Defendant

HEARD: September 3, 2003

Oral Reasons for Judgment

BENOTTO S. J.: (Orally)

1This is a motion to stay the interim decision of Mr. Justice Hamilton which was granted yesterday. No motion for leave to appeal has yet been brought.

2The effect of the order is to allow the mother to take two small children to Sweden pending the trial which is scheduled for December. The children were ordered to come back to Toronto in October for a week and again in December for a week before the trial. The trial date is set for December 15th.

3There is a procedural issue here. The motion is for a stay where the test is different than it would be if the motion were for leave to appeal. The test on a stay involves a serious issue to be tried, grave prejudice and irreparable harm. The test on leave involves the existence of conflicting decisions and a reason to doubt the correctness of the order. All of these issues were canvassed with counsel as were the leading cases. I asked counsel to expand their arguments to include a discussion of the leave issue for I believe it is, given the unique facts of this case, impossible to consider a stay outside the context of the intended leave application.

4Indeed, it is impossible to consider this issue at all without a firm grounding on what must be the guiding principle: the best interests of these children. Should they leave tomorrow for Sweden or not?

5There is an extensive history here. The issue with respect to the mother’s intended move has been the subject of negotiations, discussions, a very extensive assessment and a pre-trial. As with all matters involving children, the scheduling of this matter has been given top priority. At one point the Court was prepared to provide a trial judge in August which would have negated the necessity of the motion yesterday.

6The parties began working with the assessor Barry Brown in June, 2002, by way of open mediation. In January, 2003, the mother made it known that she wished to move the children to Sweden to marry her fiancé, who resided there.

7The assessor then, at the request of the parties, with the considerable history he had, conducted an extensive mobility assessment. He concluded as follows in his report:

“Clearly, Mr. Nusca and Ms. Davis are devoted and caring parents. It is equally clear that Ms. Davis, over these past five years approximately, has assumed and responsibly maintained primary care for Anthony and Christopher. It has only been with Ms. Davis’ urging and demand that she hold weekend parenting time that Mr. Nusca has been involved in more of the day-to-day care and supervision of their children.

Mr. Nusca is in the position to maintain the status quo on behalf of the children’s relationship with one of their parents (himself), and with their extended family and community. However, it is deemed that the most important factor on behalf of ensuing the children’s emotional well-being is the continuity of parenting that they have known in the primary care of their mother.

Further, in light of greater school vacation time in Sweden (and Ms. Davis’ offer of most of the available vacation time), the children residing in the primary care of their mother will provide them the opportunity to spend greater vacation time with their father in Canada.

Nevertheless, the recommendation that the children reside in the primary care of their mother stands, on behalf of maintaining continuity of responsible and focused primary care for the boys. In the opinion of this writer, Ms. Davis has illustrated that she is better able to provide a well-planned, secure, and caring home environment and family life than is Mr. Nusca.”

8I am fully cognizant of the fact that this is the very issue that is to be tried in December. The Court, not the assessor makes this decision. This report, to the extent that it is tendered in evidence will be but one piece of evidence before the Court. Moreover, there is the basic principle of maintaining the status quo until trial which is extraordinarily important in family law cases.

9At first glance, that status quo would be requiring the children to remain here. However, it is clear as well that the status quo relates not so much to a location as to the continuity of care. If the mother leaves, the children will be with her and enrolled in school in Sweden. The father will have the children for two extensive visits within the next few months. I do not agree that his case will be gravely prejudiced by the order. On the contrary, the children will continue to be in the care of their mother, and the entire issue will be considered by the Court in December. I see no prejudice or irreparable harm to the position of the father. More importantly I must focus on the children and I see benefits to the children in remaining in the care of their mother and being able to enroll in school and with the father during the October break.

10While the motion for leave was not formally brought, I add that there is no reason in my view to doubt the correctness of the order. The existence of conflicting decision is of little guidance because of the fact based nature of every one of these types of cases.

11Lastly and very importantly, I agree with Justice Chapnik’s decision in Fine v. Fine where she stated as follows:

“An Appellate Court will not interfere with an interlocutory order unless it is clearly and demonstrably wrong. In Family Law matters, the remedy is ordinarily to bring the matter on for hearing rather than by way of appeal of an interlocutory order.”

12With a December trial date fast approaching, the children would be better served if their parents prepared for trial rather than an appeal of an interim order.

13For these reasons the motion for stay is dismissed.

14Costs to the mother fixed at $2,000.

BENOTTO S. J.

Date of Reasons for Judgment: September 3, 2003

Date of Release: September 11, 2003

COURT FILE NO.: 530/03

DATE: 20030903

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT