COURT FILE NO.: 369/05
DATE: 20051021
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Christina Elizabeth Holt, Applicant
-and-
Stephan Anderson, Respondent
HEARD: October 19, 2005
BEFORE: Lane J.
COUNSEL: Darrell S. Waisberg, for the Appellant;
Melanie Sager, for the Respondent;
Shelley D. McIntyre for the Children’s Lawyer.
E N D O R S E M E N T
LANE J.:
[1] The applicant mother moves for leave to appeal from the Order of Karakatsanis J. dated August 31, 2005, granting interim custody of the child Alexis, (born December 24, 1993), to the respondent father. The applicant also seeks a stay of the Order if leave is granted.
[2] The parties were involved in a relationship including cohabitation from 1993 to 1997. Alexis is the child of that relationship. During that relationship, both parties were involved in the care of Alexis. Following their separation, the parties agreed on arrangements for the continued care of Alexis, who was in Kindergarten at that time. The applicant mother was pursuing education and the respondent father picked Alexis up from school daily and cared for her until 7 or 8 p.m. Between 1999 and 2003, the father was working an early morning shift and was able to pick Alexis up from school daily and care for her until 8:30 or 9 p.m. The mother was working afternoons until about 8 p.m. The father thus had time with Alexis daily during the week, including a visit on Wednesday evenings and every second weekend. During these years, the parents co-operated in decision-making for Alexis.
[3] These arrangements came to an abrupt and unilateral halt shortly after the father’s new wife arrived in Toronto in August 2003. The mother moved Alexis to another school, giving the school the grandmother’s address as the child’s home and arranged for her sister and the grandmother to assume the after-school care previously given by the father. This was done without warning or consultation, breaking the pattern of co-operation which had prevailed since the parties separated in 1997. Alexis began to live with the mother and see her father only on Wednesday evenings and every second weekend.
[4] The evidence discloses, and the motion judge found, that while both parents are appropriate, loving and caring parents, with a close relationship with their daughter, Alexis has come to want to resume spending more time with her father than the present arrangement allows. She has expressed this wish in letters and to her counsel. While some of her expressed reasons for wishing this change are childish ones, the motion judge found that other reasons included that she was happy with her father, he did things for her and that her clear desire to live with him and spend more time with him was “a material change in circumstances given her age, particularly as it is supported by concerns with her performance and lateness at school.” The motion judge observed that the child’s wishes were but one factor to be considered in arriving at a finding of where the child’s best interests lay, but they were an important factor in the circumstances.
[5] The motion judge noted that the mother submitted that there should be no change in the arrangements because there had been no change affecting her ability to care for Alexis or affecting Alexis’ well-being.
[6] The motion judge also noted that, despite the unilateral reduction in the father’s care of Alexis, and Alexis’ expressed views, the mother has not suggested any increase in time with him. On the other hand, the father has suggested that if Alexis comes to live with him, the mother should have additional time. The judge reached the conclusion that the father would best promote a close relationship with the other parent.
[7] In summary, the motion judge found that there had been a sufficient change in circumstances to warrant a change in the living arrangements on a trial basis, to give Alexis more time with her father for four months and to re-assess the results of the change before making any permanent determination. She therefore directed that Alexis live with her mother on Wednesdays after school until 8:30 p.m.; on alternate weekends from Friday after school until Sunday evening at 8:30 p.m.; on the other weekends from Friday after school until 3:00 p.m. on Saturday; and live with her father the remainder of the time. A case conference was to be scheduled for December, 2005 and the return of the motion was to be in January, 2006. The Order was implemented in early September and the arrangements have been in place through this autumn.
[8] This motion is governed by Rule 62.02(4). To obtain leave, the applicant must show that there is a conflicting decision of another court on the matter involved in the proposed appeal and that it is desirable that leave be given; or that there appears to be good reason to doubt the correctness of the order and that the matter is of such importance that leave should be granted.
[9] Counsel for the applicant mother submits that the motion judge erred in principle in failing to maintain the status quo, which he submitted was the implacable and invariable rule in these cases. He referred me to several cases, including Kimpton v. Kimpton[^1] in which it was said that “stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why, in the interests of the children, the parent having de facto custody should be deprived thereof.” He submitted that these cases conflicted with the present case and the principles on which they were decided ought to have governed the motion judge.
[10] The cases cited by the applicant are examples of the exercise of discretion by motion judges in the circumstances of the cases actually before them. That they reached conclusions favouring the status quo does not make them “conflicting cases” within the Rule. To conflict, the cases must present a difference in principle and not merely a difference in outcome. Nor do these cases elevate the maintenance of the status quo into an immutable principle; there must be compelling reasons to vary from it on an interim basis, but where the reasons exist, a variation can be made. The essence of the discretion exercised by a motion judge in a custody and access case is to determine what is in the best interests of the child. As the Children’s Lawyer pointed out, the criteria to be considered are found in section 24 of the Children’s Law Reform Act. The reasons of the motion judge show careful attention to these factors including the emotional attachments of the child to each parent, the views of the child, the length of time in a stable environment, (several years until the mother disturbed the arrangement), and the proposed plan of the father to increase the time available to the non-custodial parent if he becomes the custodial parent.
[11] This is not a case of bouncing a small and bewildered child back and forth between parents. This is a child of the age of reason who wants a return to an arrangement allowing her to see more of her father than the arrangement imposed by the mother permits. The motion judge approached the matter carefully and gave cogent reasons for her decision. She also had the assistance of counsel for the Children’s Lawyer whose submissions supported the view which she took. She concluded that it was in Alexis’ best interests to try a new arrangement that gives her more time with her father as she wishes, and to re-assess later. The new arrangement involves no great change, no moving from one city to another and no separation from either parent. I am unable to see any error in principle or any conflict with the case law. There is no good reason to doubt the correctness of the decision.
[12] As to the second branch of each of the two tests for leave, I am of the view that the case is not of such importance that leave ought to be given. The importance that is necessary must go beyond importance to the parties; it must be of general public importance requiring resolution at the appellate level. This is not such a case. No new principle is advanced and this is not a case where the motion judge has departed from
principle; rather she has applied the principle of the best interests of the child with due regard to the principles in the Act.
[13] For these reasons, leave to appeal is refused. It is not necessary to consider the submissions made as to a stay pending appeal. The respondent will have his costs on a partial indemnity basis. If the parties cannot agree on the amount they may make written submissions within thirty days.
Lane J.
DATE: October 21, 2005
[^1]: [2002] O.J. No 970 (S.C.J.)