CITATION: Alcaniz v. Willoughby, 2011 ONSC 1502

DIVISIONAL COURT FILE NO.: 10-DV-1661

DATE: 2011/03/15

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Justice Robert J. Smith

BETWEEN:

LOURDES ALCANIZ

Applicant/Responding Party

– and –

DONALD GEORGE WILLOUGHBY

Respondent/Moving Party

George Hunter, for the Applicant/Responding Party

Richard P. Bowles, for the Respondent/Moving Party

HEARD: March 3, 2011

REASONS FOR DECISION

1The respondent father seeks leave to appeal the interim order of Kane J. granting the mother interim custody of the children and permitting her and the four children to return to Florida. In addition, Kane J. granted a stay of the Ontario proceedings with regards to custody and access, if and when the Florida court assumes jurisdiction of these issues.

2The father submits that the criteria set out in Rule 62.02(4)(a) and (b) of the Rules of Civil Procedure have been met namely that there is a conflicting decision and it is desirable that leave to appeal be granted and secondly, that there is good reason to doubt the correctness of the order and the proposed appeal involves matter of importance such that an appeal should be granted.

3The responding mother denies that either test for granting leave to appeal have been met.

Test Under Rule 62.02(4)(a)

Conflicting Decision

4The first part of the test requires that there be a conflicting decision by another judge. In this case, Kane J. permitted the children to move with their mother to Florida in highly unique circumstances where she came to Canada with the children on a temporary basis to support her husband during the death of his father; the father removed her and the children’s passports, green card and social insurance cards and buried them; the mother had been living in a shelter for approximately six months as a result of abusive behaviour by the father; the mother had always been the primary caregiver for the children since birth as the father was a seaman and was away for extended periods; the father was charged criminally with assault at the time; and the Children’s Aid Society insisted that he only be granted supervised access to the children; the mother’s visa was expiring in October of 2010 making the matter urgent; the parties owned a condominium in Florida and had lived there previously; the mother had a successful business related to the Hispanic community in Florida; the children are Spanish speaking and they would fit in well to the Hispanic culture in Florida; Florida had evaluated and provided a very good educational program for Alexander who has Down Syndrome; and during the six month separation before Kane J.’s order, the father had only paid $1,000 in child support.

5I do not find that there is a conflicting decision with regard to the principles to be applied on a mobility case. Both counsel agreed that the principle is the best interests of the children as set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 191 (SCC), 1996 CarswellSask 199 (SCC); and in Plumley v. Plumley, 1999 13990 (ON SC), 1999 CarswellOnt 3503 (Ont. S.C.); [1999] O.J. No. 3234 on an interim basis. These decisions were appropriately considered and applied by Kane J.

6The father points to the decision of the Ontario Court of Justice of Cox v. Darling, 2008 ONCJ 91, [2008] O.J. 824 as a conflicting decision. In this decision, the Court permitted Ms. Darling to move with the child to Chicago on an interim basis but required the case to remain under Ontario’s jurisdiction. The facts are so different and unique that I am unable to conclude that this decision is a conflicting decision on the major aspects of Kane J.’s decision. In any event, it is not conflicting on the legal principles to be applied with regard to interim custody and access or on the mobility issue.

7The father has not pointed to any other conflicting decisions on the question of whether the Ontario action should be stayed in a mobility case or on which court should assume jurisdiction, where the mother and children are permitted to return to a distant jurisdiction on an interim basis.

Desirable that Leave be Granted

8The second part of the test under Rule 62.02(4)(a) requires a finding that it is desirable that leave to appeal be granted. I am unable to make this finding as that the children have moved to Florida in August of 2010 and have been living and attending school in Florida for approximately six months at this point in time.

9In this case, there were ample grounds supporting Kane J.’s decision that it was in the best interests of the children to grant interim custody to the mother, and for his finding that it was in the best interests of the children to permit the mother and children to return to Florida.

10I agree with the moving party that the question of granting a stay of the Ontario action upon the mother commencing an action for custody and access in Florida, where she is residing with her four children, is one that is open to debate.

11However, since both parts of s. 62.02(4) are not met, leave to appeal is not granted on this ground.

Test Under Rule 62.02(4)(b)

Reason to Doubt Correctness

12I do not find that there is any reason to doubt the correctness of Kane J.’s order granting interim custody to the mother or of his order allowing the mother and children to return to Florida. However, I agree with the applicant that granting a stay of the Ontario action, upon the mother commencing an action for custody and access in Florida is open to serious debate. This relief was not requested and the parties did not have an opportunity to make full submissions on this issue.

Matter of Such Importance Such that Leave Should be Granted

13The second part of the test requires that the matter be of such importance that leave should be granted. The test for granting interim custody is well established as the best interests of the children considering the relevant factors. The same is true for the principles to be applied in mobility cases which have been decided in Gordon v. Goertz, supra, by the Supreme Court of Canada and for interim mobility cases by Plumley v. Plumley, supra. These decisions were appropriately considered and applied by Kane J. Leave to appeal is therefore denied for the part of the order granting interim custody to the mother and granting the mother permission to move to Florida with the children as I find these matters are not of such general importance that leave should be granted.

14The issue of whether the Ontario Court could exercise jurisdiction on an application for custody and access and other relief and then stay the Ontario proceeding with regard to custody and access in favour of the Florida jurisdiction, without hearing full argument on this issue is such of importance that leave to appeal on only this issue should be granted.

Disposition

15For the above reasons, the motion for leave to appeal with regards to that part of the order granting interim custody to the mother and granting the mother permission to move to Florida with the children is denied. Leave to appeal is granted with respect to the issue of whether the Ontario action is automatically stayed with regards to custody and access if a Florida Court assumes jurisdiction.

Costs

16If the parties are unable to agree on costs, they may each make brief submissions on costs with ten (10) days and reply to the other party’s submissions within seven (7) days.

R. Smith J.