Citation: Mudry v. Danisch, 2014 ONSC 4335

Divisional Court File No. 305/14

Date: 20140718

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

JESSICA MUDRY

Applicant (Respondent in Appeal)

Dana Cohen, for the Respondent in Appeal

• and -

ROBERT DANISCH

Respondent (Appellant)

Andrew Chris for the Appellant

HEARD: July 10, 2014

REASONS FOR DECISION ON LEAVE TO APPEAL

M.A. SANDERSON J.

Introduction

[1] This is a motion brought by Robert Danisch ("the father") for leave to appeal to the Divisional Court the Order of the Motions Judge dated June 12, 2014 and for a stay of that Order.

[2] The Order from which leave to appeal is being sought provided that Jessica Mudry ("the mother") would have interim custody of their two children, boys aged 6 and 7, and that the father would have access to the children on a supervised basis for one hour per week.

Background

[3] The June 12 hearing and Order followed an ex parte motion brought by the mother and an Order dated June 6, 2014, providing that the children reside in the mother's sole care on an interim basis and that the police apprehend [remove them from the father's care] and deliver them to the mother.

[4] Since I am of the view that the circumstances surrounding the ex parte motion are relevant here, I shall include details in my recitation of the relevant facts.

[5] The parties married in 2001 and separated on April 15, 2011. They have two sons, Eliot born October 10, 2006 and Julien born June 8, 2008.

[6] From June 15, 2011 until the return of the ex parte motion on June 6, 2014, the parties shared legal and residential custody of the children.

[7] On April 23, 2012, they entered into a separation agreement that provided for shared custody. That arrangement was formalized in a consent Order dated June 12, 2012.

[8] An agreed shared residential schedule was in place between June 15, 2011 and September 1, 2013. It provided that the children would spend three nights per week with the father and four nights per week with the mother. They would spend one week with each parent during the Christmas vacation and two weeks with each parent during the summer.

[9] When disagreements arose over the interpretation of that schedule, they were able to negotiate a specific schedule with the assistance of a parenting coordinator, Mr. McWhinney. [Mr. McWhinney retired in July 2013.]

[10] During that period there were some disagreements between the parties. On April 7, 2003, the mother called the police alleging that the father had no car seats in his car. The father has deposed that when the police attended, there were car seats in his car.

[11] On both Mother's Day and Father's Day, 2013, the mother called the police again. The father has deposed that on both occasions, the police found the mother's claims to be without merit.

[12] What is uncontested is that the police involvement was very upsetting to the children, especially Eliot.

[13] On May 14, 2013, the mother served a Motion to Change Custody and Access, seeking primary care of the children. The father opposed her Motion for Change.

[14] On June 20, 2013, at an appearance before the Dispute Resolution Officer, after the mother's lawyer Tom Bastedo suggested it, the mother and father agreed to a mediation to be conducted by Dr. Barbara Fidler.

[15] The father deposed that they spent considerable time with Dr. Fidler in difficult negotiations over a new parenting plan. They ultimately agreed to an equal shared parenting regime on a 2-2-5-5 basis.

[16] As he was representing himself at the mediation, the father deposed that at Dr. Fidler's request, starting in January 2014, he tried to find a lawyer to provide him with independent legal advice ("ILA") [although he did not feel he needed ILA]. Several lawyers advised him that they would have to review the whole case. They asked him for retainers of between $3000 and $5000. He did not have the money to pay for such an expense.

[17] The agreed parenting plan was signed by the father on February 12, 2014 and by the mother on March 18, 2014. The parties followed that plan until the events in early June 2014. He deposed that they had no significant disputes about the agreed residential schedule between September 2, 2013 and June 3, 2014, and he attached to his affidavit all of their emails to each other during that timeframe.

[18] On March 25, 2014, Dr. Fidler sent the father an email saying she had signed copies of the Parenting Plan and Parenting Coordination Agreement and she wanted him to get ILA. He deposed that he wrote her back saying he had been unable to get ILA. He also said he could not afford it.

[19] The mother's lawyers made no mention of the ILA issue before June 3, 2014.

[20] On June 3, the father called the mother's lawyers ":…[your client] just wrote me a threatening email suggesting that our children's schedule was no longer operable…I consider this an emergency. The children are presently with me and will remain with me until your client or someone who represents her agrees to make a schedule going forward with them…"

[21] The father deposed that on June 3, 2014, when the mother advised him that the agreement they both had signed and had been living under for the last 9 months was void, he was confused. He asked for an explanation. He requested they negotiate a temporary residential schedule.

[22] He thought the worst case would be standing outside the children's school and each of them telling their sons they should come with him or her. That would put the children into an awkward situation. He decided to keep them home from school to avoid this scenario and to try to get her to negotiate a residential schedule on an urgent basis.

[23] On June 3, the father wrote Dr. Fidler: "...Could you please email me a copy of the signed agreement? I was informed today by Ms. Mudry's lawyer that the parenting coordination agreement is null and void so it appears we wasted our time."

[24] At 12:35 p.m. on June 3, the father called the mother's lawyer to say:

Your client's name is Jessica Mudry. …She's decided that she will no longer be abiding by the terms of that agreement…I consider this to be an emergency. We need to get in front of a judge as soon as possible…I have told Tom Bastedo and everyone involved in this case this is an emergency and you are to return a phone call within the next six hours. Otherwise, they stay with me and I'll be happy to go to Court…I'd appreciate a call back…in the next few hours.

[25] On June 3 at 4:33 p.m. the father wrote an email to the mother, including the underlined words that Paisley J. quoted and emphasized at the June 12 hearing. The father wrote:

Here is my understanding of the children's schedule, as it was negotiated by me in good faith months ago with Dr. Fidler. I want written confirmation whether you will be abiding by this schedule by 8 am tomorrow. In the absence of confirmation the following will result: First the negotiated settlement regarding Federal Court File T-1939-12 will be withdrawn. Second I will report [both your family and IT lawyers] to the Ontario Bar Association for ethics violations… Third I will not acquire an ILA regarding the parenting agreement … and that agreement will be null and void. Fourth, I will not…negotiate any settlement to family court matter in which you filed a motion for full custody…we will proceed to trial…Fifth I will file a civil lawsuit for harassment based on the advice of the Toronto Police…for repeated harassment of me. Sixth I will file additional lawsuits for additional copyright violations…Here is the children's schedule negotiated with Barbara Fidler:…I need written confirmation by 8 am tomorrow that this schedule will be the residential schedule for the children….If I hear nothing by tomorrow at 8 am I will assume that you are rejecting this schedule…As I have told [your lawyer] I consider your refusal to discuss the children's schedule as a directly harmful action and is unnecessarily causing the children unnecessary stress. Furthermore your refusals are a clear sign to me you are unwilling to abide by the terms of the parenting plan that we have already negotiated and that that parenting plan is now null and voids given your actions.

[Emphasis added.]

[26] At 9:18 p.m. the mother wrote the father: "The certificate of ILA is required to execute the parenting plan."

[27] At 9:18 p.m. the father sent Dr. Fidler another email. The motions judge mentioned the underlined words at the June 12 hearing:

I'm sorry I can't pick them up. I'll be busy the next few days with lawyers and most likely in court. I paid almost $5000 to make a schedule for my children that lasted all of nine months. I negotiated in good faith…The whole situation speaks to gross incompetence…you never informed Ms Mudry's lawyers that I would not be obtaining independent legal advice and now my sons do not know where they will be sleeping tomorrow night and are anxious about why there is no schedule. We are back where we started and one wonders why that is. Apparently it is because I refuse to pay $3000 so that someone can read me the document, the terms of which I negotiated myself, and ask me if I understand it…I have no idea what could have possibly happened during the last six months that these documents were never sent to me or sent back to Ms Mudry's lawyer. I find it astonishing that no one involved in this case is willing to solve a simple straightforward problem and act in the children's best interests……Mail it don't mail it I couldn't care less at this point. I told you almost a year ago Ms Mudry was never going to sign these documents or take the agreement seriously…It was only a matter of time before she was going to back out of it and magnify conflict in a destructive and harmful way. That day is now upon us. The agreement is unenforceable and the children continue to suffer. You might want to ask yourself what responsibility you have in all of that. It seems pretty clear you were colluding with Tom Bastedo to fleece us out of a few thousand dollars while making it certain that Mr Bastedo's firm would continue to profit from Ms Mudry. The whole thing is sickening.

[Emphasis added.]

[28] On June 3 at 9:30 p.m. the father wrote the mother:

I spent weeks trying to get an ILA… I told everyone involved in this case including Dr. Fidler that it is not possible for me to get an ILA nor am I required to by law … So we return to square one. Have your lawyer contact me to begin negotiating a new schedule…This creates a major problem for the children.

[29] At 10:03 p.m. the mother wrote to the father: "I stated I was happy to move forward with the schedule according to the parenting plan once the ILA is signed…I suggest you call a few more lawyers tomorrow."

[30] On June 3 at 10:26 p.m. the father wrote the mother:

You wrote this morning the parenting plan is not enforceable…I must sound like a broken record at this point but I have tried repeatedly to get ILA. This morning I called two lawyers. Neither would agree to do it……So I have no choice but to start over and begin again. I have no concern for my own interests. I am concerned for the children, providing for their interests by offering stability, consistency and clear answers to their questions. We're going to abide by the plan that we drafted with Dr. Fidler or not. You have told me you will not. I have signed the plan and agreed to live by it…Given you will not abide by the current plan the children need a residential schedule. .I believe that is in the children's best interest and I believe it constitutes an emergency for them, given that they do not know where they will be.

[31] On June 4 at 8:04 a.m. he wrote to the mother: "The children are with me until they have a residential schedule. Please let me know when you are willing to discuss this or when you have arranged a court date to deal with this."

[32] On June 4 at 9:52 a.m., the mother's lawyer Ms. Chousky wrote the father:

I asked you yesterday whether you would agree to get an ILA if we are able to find a lawyer to provide it to you. I have received confirmation from at least two that they can meet with you to review the PC Agreement and give you ILA. They will charge you an hourly rate and do not need to review your whole file…Are you willing to get ILA to bring this whole thing to a conclusion?

[33] At 10:04 a.m. on June 4 the father responded to the email from the mother's lawyer:

You'll have your ILA by 4 pm. You need to call Barbara Fidler between now and then to confirm that she will execute the documents, confirm the children's residential schedule and write to confirm that you will file the Minutes of Settlement. I need confirmation of these things before I provide the ILA.

[Emphasis added.]

[34] At 10:28 a.m., the mother's lawyer wrote the father: "Dr. Fidler is ready to proceed as soon as your ILA certificate…is signed. If you wish independent confirmation of this fact then you may contact her directly."

[35] At 10:45 a.m. the father wrote the mother's lawyer:

I've tried to speak to Dr. Fidler and she will not confirm she will process the documents. That's why you need to call her and make sure she will, otherwise we are all wasting our time and money…That needs to be done by 1 PM today … I will not be going to get ILA without confirmation that Dr. Fidler will accept that… The children are with me and will remain with me until such time as I have confirmation of their residential schedule or until we have negotiated a new residential schedule or until we have a court date…I don't know where they are supposed to be or when and neither do they….I'm spending a lot of money, time, and missing work to comply with your stupid request…I don't know how many times I have to say this CONFIRM THE CHILDREN'S RESIDENTIAL SCHEDULE, NEGOTIATE A NEW SCHEDULE OR ARRANGE A DATE WITH THE COURT. The rest is bureaucratic nonsense that has no bearing on the well-being of the children. Your client's refusal to deal with the residential schedule is…harming them…solve the problem without causing more discord and disagreement and amplifying your billable hours.

[36] On June 4 at 11:08 a.m., Dr. Fidler wrote the father:

…Please be advised that the ILA required pertains to the PC Agreement as the dispute resolution process involves family arbitration… As you will recall I wrote to you, Jessica and her lawyer on March 25, the same day I received the Parenting Plan. You replied on March 26… You did not ask me to convey your message to Jessica so I assumed you would have advised her yourself… Accordingly, as indicated to you both, I cannot proceed to provide arbitration services without an ILA certificate from both parents.

[37] At 11:35 a.m. he wrote to Ms. Chousky, the mother's family lawyer and her IP lawyer:

Because the two of you are colluding anyway you should know the Federal Court of Canada has agreed not to process the Notice of Discontinuance…Congratulations to both of you, you managed to work together and fleece your client out of potentially thousands of dollars instead of constructively arriving at a conclusion…

[38] The father said that before he was scheduled to go for ILA, the mother's lawyer advised him that Dr. Fidler would no longer work with the couple.

[39] He left a voicemail message at 12:58 p.m.:

Yes it's Robert Danisch calling again. It's now 1 o'clock. I've cancelled my meeting with the attorney to get the ILA. Obviously given Dr. Fidler's email we need a solution and we need constructive solutions, we need them immediately, we need the residential schedule for the children as in RIGHT NOW…

[40] At 1:15 p.m.:

…like I said I'm going to continue to try solve the problem…so I'm going out of my way doing everything to create a solution…You're now refusing and your client is refusing to address that major issue which is an extraordinary problem and you need to deal with it and you need to deal with it immediately as in NOW.

[41] At 1:29 p.m.:

…calling to try to find a constructive solution….It's 1:30 I expect your client will show up at 2:45 with the police…You're manufacturing conflict, ratcheting up disagreements and amplifying your billable hours which is disgusting. You brought the problem up. Let's solve it NOW…

[42] At 1:53 p.m.:

Please call me back immediately in order to establish a temporary residential schedule for the children and figure out when we can establish a court date so we can proceed. You initiated these problems, … they need to be solved immediately…

[43] At 2:08 p.m.: "I left messages for Samantha Chousky. I don't know why she is not returning my calls or returning emails. This is an emergency."

[44] At 2:14 p.m.: "I'm trying to reach Samantha Chousky. It's an emergency. She needs to call me back immediately…"

[45] On June 4 at 2:54 p.m. the mother wrote the father:

I understand that you are withholding the children. I need to know they are ok. This is unacceptable, and there is no reason to put the children through this. I also understand they were not in school today. Please have them phone me on my cell phone.

[46] On June 4 at 3:00 p.m. he responded:

I'm not withholding them. We don't have a residential schedule so I don't know where they should be. We are waiting for you or your lawyer to negotiate a residential schedule so we know where they should be … You have chosen to put the children through this by refusing to make a residential schedule. This is causing them direct harm as I have told your lawyer.

[47] At 3:09 p.m. he wrote:

I assume you think the children should be with you today. I'd like to know why you are making that assumption. What are you using to determine the children's residential schedule? Why don't you tell me what the children's residential schedule should be and how you came up with it…???

[48] At 3:21 p.m. he wrote

…your refusal to negotiate the schedule are the problem right now. If not the Fiddler Schedule then what? The children need an answer to that question and they need it immediately. What is it you want to do here?

[49] At 3:50 p.m. on June 4 he wrote:

This is so far beyond ridiculous…look, the kids and I don't know where they should be. And I won't be putting them in a position of having the police called at the schoolyard or swimming practice or having to choose between the two of us when we haven't agreed where they should be. You can feel free to call police on me if you wish but I'm acting in the best interests of the children by shielding them from conflict. I've called your lawyer 15 times today wanting to know how we are proceeding. We need a temporary schedule and court date or the existing parenting plan needs to be made into a court order without the dispute resolution clause……In the meantime the kids are here with me and they are fine. When you let me know what you want, their lives can move on but I consider this an emergency situation that needs immediate attention…When you realize this is an emergency situation that needs immediate attention then you let me know and we can proceed to fix the problem.

[50] He wrote: "The kids and I are heading out for dinner in a few minutes…If you want to set up a time to negotiate the schedule suggest you do that this evening before too much time passes…"

[51] At 4:57 p.m. she wrote:

Your frequent emails are very concerning to me-they are erratic and do not make any sense…I will not be in a position of being blackmailed into agreeing with your schedule so I can see my children. You will receive a proposed schedule tomorrow morning. In the meantime … I am available to pick up the children today.

[52] At 5:07 p.m. he wrote:

I didn't propose a schedule. We agreed to a schedule with Barbara Fidler…I have said repeatedly since you told me the Fidler plan is out: either you need to confirm that we are working with the agreement we reached with Fidler or we need to negotiate a new temporary residential agreement and set a new court date. This is an EMERGENCY…

[53] He wrote at 5:29 p.m.:

…I've been telling you that there is an emergency for over 24 hours and you have refused to attend to that emergency…it needs immediate attention. Every second that goes by without this receiving your attention harms the children.

[54] At 6:02 p.m. he wrote:

So I send you a message there is an emergency and I get no response…This is deeply, deeply disturbing….Pl deal with it or at least acknowledge that you are aware of the emergency and unable to deal with it.

[55] At 6:36 p.m. he wrote: "The fact you are withholding your proposed residential schedule until tomorrow morning is harmful."

[56] At 6:39 p.m. he wrote: "…there are consequences to refusing to acknowledge that your children's father is telling you there is an emergency that needs to be dealt with and you are refusing to deal with it."

[57] On June 4 at 7:13 p.m. the mother wrote the father:

I will pick up the children in 15 minutes and take them to school tomorrow morning. You can come and get the kids on Saturday and drop them at school on Monday. In the meantime we will either come to an agreement or address this with a motion.

[58] He repeated over and over again if they did not have a residential schedule he did not know where the children ought to be. He implored her lawyers to negotiate a residential schedule.

[59] On June 5 at 5:31 a.m. Dr. Fidler wrote Ms. Mudry: "How are things this morning?"

[60] The mother replied to Dr. Fidler at 5:47 a.m.: "He's lost it completely…He wants the schedule you drew up-the 50 50 split and he has just forfeited that. He really believes holding them hostage is the right thing to do…"

[61] At 7:02 a.m. the mother wrote to Dr. Fidler: "I am going to call the police. His last email to me stated clearly he is holding them hostage and that failing will only cause more harm."

[62] At 7:17 a.m. Dr. Fidler wrote to the mother: "I have called the CAS."

[63] On June 5 at 10:59 a.m. the father wrote to the mother:

I won't put the kids in a position in which they do not know what is happening. If I bring him to the field you will call the police on me when we try to come home and I will not expose either Eliot or Julien to that. Everything is suspended until the emergency is dealt with…the way this gets dealt with is by you telling me what the residential schedule is for the children. Once that happens everything returns to normal. Until that happens I will not put the kids in a position of having to deal with the police again…This is an emergency situation that requires immediate attention…You let me know what the residential schedule is and Eliot will be at soccer and school and everything else. Until then I will not willingly put them in such uncertain circumstances and have the police called on us.

[64] On June 5 at 12:52 p.m., Ms. Cohen, the new lawyer acting for the mother, wrote the father :

I understand from Ms. Mudry you are currently holding the children, refusing to return them to their mother's care until she agrees on a formal and long term basis to an equal parenting schedule… I have reviewed the hundreds of emails and have been advised of the plethora of phone calls and voice messages in the past two days you have sent to Ms Mudry and to Samantha Choudry and everyone in her office. I also understand that you have been emailing and calling Barbara Fidler. Given your recent behaviour, Ms. Mudry is concerned for the children's safety and she is also concerned the children are not in school. So to get us past the current crisis, which you yourself have designated as an emergency, Ms Mudry is proposing that the children be returned to her care immediately this afternoon. The children will remain in her care on a without prejudice basis until next week when if we cannot negotiate a longer term resolution in the meantime we can have a motion heard in court.

[65] The father responded at 1:37 p.m.:

Your suggestion for a temporary schedule is rejected. You have not recounted the facts properly…Ms Mudry and I have a parenting plan we have both signed. This plan began to be followed in September …but was never filed as minutes of settlement. I will refer to this plan…as the Fidler Plan… I am not requesting any formal or long term residential schedule. I did think we already had that…we need a temporary plan while we wait for a trial…Your client informed me on Tuesday of this week that the Fidler Plan was unenforceable and now void I have no idea why…My response since Tuesday of this week.. has been to try to determine what residential schedule for the children should be in the absence of the Fidler Plan. Your suggestion that the replacement for the Fidler plan is … contrary to law and harmful to the children. My primary concern is with the children's well being. I will not put them in a position where they do not know what is happening or why or they are forced to witness conflict. That would be bad parenting. Your client has a long well-documented history of calling the police on me for a variety of reasons ….we are waiting in a manner that best avoids conflict and avoids the children having to be questioned by the police (as they have been in the past). Your accusation I am "holding" the children is contrary to fact, directly incendiary and harmful to finding a constructive resolution to this problem. We are waiting for your client or someone on her behalf to negotiate a temporary schedule…Perhaps you can help me understand …why has your client chosen to abandon the Fidler Plan which we spent months negotiating and which the children have used for the last nine months?... What change in a material circumstances has occurred … In court I will simply ask the judge to maintain the status quo by turning the Fidler Plan into a court order…the Fidler Plan has marked a huge improvement for the children's lives… Please send me your Notice of Motion as soon as possible so I have time to write my response. I look forward to court. My counter-proposal to your ridiculous proposal is to maintain the Fidler Plan until we have been to court. … If we are to follow the Fidler Plan, then the childen would be with Ms. Mudry tonight…

[66] On June 5 at 2.02 p.m. he wrote:

I'd be happy to return the children to Ms Mudry this afternoon. But the question is what happens on Friday? On Saturday? Until I know what happens on the other days I'm not going to agree to anything. And the children being with your client on all the other days would directly contradict our negotiated agreement … The present Fidler Plan gave Ms. Mudry the last two weekends with the children…What is the rationale for your suggestion? It is a complete deviation from the status quo for the children…We need to proceed to go to court next week…It would be extremely helpful for this entire situation if you would do me the courtesy of explaining what the problem is with the Fidler plan?

[Emphasis added.]

[67] He emailed the lawyer again at 3:55 p.m. and 8:54 p.m., encouraging the negotiation of a temporary residential schedule. At 8:54 p.m. he wrote:

I think it is very important that they see their mother at some point soon. I have encouraged her to visit them but she has rebuffed that. I think it's bad for the children to go too long without seeing either of their parents. … I'd like you to share your client's concerns with the Fidler Plan. If I understood what the problem with the plan is, perhaps we could solve the problem.

[Emphasis added.]

[68] Instead of discussing a schedule or preparing a motion and serving it on the father, the mother's lawyer brought an ex parte motion returnable on June 6.

[69] In her materials in support of that motion, the mother deposed that the father had been essentially holding the children hostage since Tuesday, had not brought them to school since she had refused to agree to his demanded equal parenting schedule. She deposed he had refused to permit her to see the children. She deposed that that morning Dr. Fidler had advised that due to her concerns about the children based on numerous threatening emails she had received from the father, she had telephoned the Children's Aid Society emergency intake line to report concerns of harm to the children. The mother had called the police. She stated she was concerned he would hurt the children or disappear with them.

[70] Curiously, neither the father's nor the mother's emails to Dr. Fidler, written by the father on June 3 and 4 and by the mother on June 5 at 5:47 a.m. and 7:02 a.m. were included in the mother's materials filed in support of her ex parte motion. What was included was an email from Dr. Fidler to the mother dated June 5 [with no time on it] including the following:

…Although concerned, based on these communications since June 3rd, I chose not to contact the CAS yesterday. However I woke this morning with persisting concerns. I contacted you to see how the children were. You advised the children were still in their father's care and that you believed he was choosing not to take them to school. In addition you advised there may be an emergency motion tomorrow (Friday). I asked when Rob would be served and you said this afternoon. With this information raising concerns about how Rob might react to being served I determined it was prudent to be cautious and accordingly contacted the CAS… Considering all the recent communications, I was left with concerns, i.e., a reasonable suspicion of potential risk of harm to the children while in the care of their father.

[Emphasis added.]

[71] I infer from that email that the mother failed to disclose to Dr. Fidler or the court that the father was actively seeking an early court date absent a negotiated resolution. He deposed the mother and her lawyer knew he was waiting at home to be served. There was no basis for Dr. Fidler to be concerned about his reaction to being served.

[72] He deposed she had the children's passports and could not have been concerned the father could remove them from Ontario.

[73] On June 6, based on the mother's materials and the information that Dr. Fidler had called the Children's Aid Society based on concerns arising out of the father's emails to Dr. Fidler, Justice Paisley ordered that the children "shall reside in the Applicant's sole care on an interim basis" and that the police apprehend the children and deliver them to the mother.

[74] The June 6 Order was for 6 days. On June 6, the ex parte Order was served on the father and returnable before Paisley J. on June 12. The father deposed "the police were impressed with how calmly and rationally [he] handled the situation." Upon receiving notice of the June 12 hearing, the father prepared extensive responding materials. In materials filed for the June 12 hearing, the mother deposed that by June 6 she had received approximately 20 threatening and irrational emails from him. The father's emails to Dr. Fidler had resulted in Dr. Fidler's call to the Children's Aid Society. The mother deposed that "in fear of the consequences to herself and the children if she did not agree to his demands, she had earlier agreed to various joint custody and shared parenting regimes." The father's "threatening and irrational behaviour was not something that suddenly arose in early June 2014.Since their separation, he had had various outbursts wherein he overtly threatened her. However, everything changed in early June when he directly exposed the children to his threatening irrational behaviour. She was scared for the children's safety. Dr. Fidler was scared for the children's safety. Justice Paisley was concerned for the children's safety."

[75] The father deposed his emails to the mother were not threatening and irrational. He deposed he could not understand how Dr. Fidler could have concluded that the children might need protection based on his emails to her. Since the mother had alluded to his emails that purportedly had caused Dr. Fidler to call the CAS and since the mother had alluded to numerous threatening emails from him, in his materials for the return of the motion on June 12 he attached every email he had sent to Dr. Fidler and to the mother during the relevant period, so the Court could review the tone and content of those emails for himself and could and consider whether the emails justified the mother's allegation that the father was acting irrationally and was threatening the mother, and whether his emails to Dr. Fidler formed a basis for Dr. Fidler to conclude the children were under a threat of harm while in the father's care.

[76] The ex parte motion was returnable on June 12.

[77] At the hearing on June 12, counsel for the mother proposed that commencing on June 14, without prejudice, on a temporary basis, pending written agreement or court order, the children would spend alternate weekends Saturday nine to five, Sunday from nine to five with the father, plus every Wednesday between school and 7 p.m.

[78] Her counsel submitted that parenting plans can be set aside in the best interests of the children. She asked the Court to conclude that her concerns about potential harm to the children while in their father's care were warranted.

[79] This court has reviewed a transcript of the hearing on June 12, 2014.

[80] At the beginning of the hearing, Justice Paisley ("the Court" or "the Motions Judge") asked the father whether he had read his June 6, 2014 endorsement and whether he had filed any materials. The Court said: "Well, I didn't see it and I don't see it today. …Well, I obviously have not read that which I do not have."

[81] It is uncontested that the father had properly filed voluminous materials but that they had not been delivered to Justice Paisley for his review before the motion.

[82] When the father learned that his materials had not been received or reviewed by the Court, he gave the Court a copy: "It's really long. This is the affidavit and motion form."

[83] The Court commented: "I'll do my best" and "This is not exactly the best way of doing things, but it's the only way to do it, if I'm going to make any headway at all today."

[84] The mother in her materials on June 6 and then again on June 12, had relied on the fact that Dr. Fidler had called the CAS and had asked the Court to conclude that she and the children were in danger. She had deposed that she was "scared" of Dr. Danisch.

[85] The mother deposed that she had agreed to the schedule and to joint custody out of fear that if she did not comply with the father's demands, there would be grave consequences for herself and the children. In February 2014"despite and probably in relation to all her fears" she had signed a parenting plan, agreeing on a shared parenting schedule and joint custody, on the caveat that Dr. Fidler would be the parenting coordinator and mediator on a long term basis.

[86] In his materials for the June 12 hearing, the father had deposed that on June 3, the mother had asserted that the schedule that they had negotiated with Dr. Fidler was null and void, only hours after he had agreed to resolve a civil dispute with the mother involving a copyright dispute.

[87] He deposed that after she advised that the parenting plan was void, he had become very frustrated. Dr. Fidler had failed to inform Mr. Bastedo or Ms. Chousky, the mother's lawyers, that he had been unable to obtain ILA and had left the matter in a state of flux.

[88] On June 4, Ms. Chousky emailed the father informing him she had located a lawyer who would be prepared to provide the ILA. He agreed to obtain the ILA, but before he could do so, Dr. Fidler refused to act further, even if he obtained ILA.

[89] He deposed, given that the mother was taking the position that the parenting plan was void, given the mother's history of calling the police, and given Eliot's earlier adverse reaction to previous police intervention, he was concerned that if he took the children to school, the mother and the police would be there and would expose the children to conflict and police involvement. He did not know what to do.

[90] Having read the mother's materials before the commencement of the hearings and some of the father's materials while sitting in the courtroom, the Court asked the father a number of questions arising from his review.

[91] He commented that Dr. Fidler had stated that she had a reasonable suspicion of potential risk of harm to the children while in his care.

[92] The Court asked the father why he thought Dr. Fidler had been colluding with Tom Bastedo.

[93] The father responded that he did not think Dr. Fidler could have reasonably concluded that the children were in need of protection on the basis of the emails [all of which he included in his responding materials] he had sent to Dr. Fidler.

[94] The Court said:

I obviously have not had the time to read them thoroughly. My practice in any contested case is to study the documents thoroughly. I cannot do that sitting here in open court with what looks like about over a hundred pages of single spaced typed and carefully prepared material, but I have looked at the highlights of your material. My concern is you were alleged to have told Ms Mudry that you were going to keep the children out of school and she would not see them unless she agreed to a parenting plan.

[95] In his affidavit, the father had deposed that the mother's statement was misleading because before June 3, she had already agreed to Dr. Fidler's parenting plan, had signed it, and they had already been following it for 9 months.

[96] I note that in his June emails, the father had repeatedly offered to return the children to the mother's care as soon as they had agreed on a temporary residential schedule. Also at 8:54 p.m. on June 5, he had written the mother's lawyer:

I think it is very important that they see their mother at some point soon. I have encouraged her to visit them but she has rebuffed that. I think it's bad for the children to go too long without seeing either of their parents …

[Emphasis added.]

[97] The Court then criticized the father for failing to file updated and accurate information.

[98] Counsel for the mother advised the Court that she had requested a custody and access assessment from the OCL. She said "since there are significant clinical issues here" the only option for the OCL would be a s. 112 assessment.

[99] The father took umbrage at counsel's suggestion there were "clinical issues."

[100] The Court said"I am concerned about the allegation you threatened to prevent the children's mother from having access to them."

[101] The father said there was no evidence to suggest that, and invited the Court to read the emails in which he had invited the mother to visit the children (e.g., his email sent at 8:54 p.m. on June 5).

[102] The Court said he is often presented with conflicting evidence in motions court. He could not say who was telling the truth. He noted that Dr. Fidler seemed to have felt there was some evidence of serious risk.

[103] The Court asked: "Are you prepared to live by the schedule and not withhold the children from Ms Mudry based on what you perceive to be some breach on her part?"

[104] The father answered: "Absolutely yes, if the schedule we are talking about is the one outlined in the parenting plan that we have been living with for 9 months."

[105] The father said to the Court. "We have an access schedule. The children have been living under it for nine months. It's been signed by both of us. The origins of this dispute are that Ms. Mudry decided to abandon it suddenly, without notice, without cause and without explanation. I have not heard a single argument why it should be varied."

[106] The Court asked the father whether he had allowed the children to go to school. The father agreed that he had not. He tried to explain why he had kept them home. He advised the Court he had received advice that he should do whatever he could to keep the police out of it. The worst thing for the children would be for Ms. Mudry and him to both show up at the children's school without a court order defining with whom they should be going home, and for Ms. Mudry to tell the children to come with her and for Dr. Danisch to tell them to come with him.

[107] The Court said:

Today I'm stuck because whatever the material filed it did not get to me. I've taken a quick look at your material and I want to have clearly your version of the events which brought you to court today…Your response is over 100 paragraphs, single spaced, very cogent, very carefully written. But I'd like to know exactly what you say your communication was with Ms. Mudry about whether she would see the children or whether they would be permitted to go to school.

[108] The father explained again he considered this to be an emergency. If the boys did not have a schedule he did not know what would happen. He would have been happy to arrange a temporary schedule. If there was no schedule they needed to attend court.

[109] The Court then asked again why he thought Dr. Fidler was colluding with Tom Bastedo. He said Mr. Bastedo had referred them to see Dr. Fidler. The father said to answer that question, if Dr. Fidler were here he would ask her four questions: (1) How many clients have you gotten in the last ten years? (2) How many clients in total have you had? (3) How much in billings did you get from Mr. Bastedo's clients? (4) How much have you billed in the last ten years?

[110] Counsel for the mother was allowed to make submissions. She said the mother had concerns about the father's irrational behaviour, his claims that ILA was a mechanism for the legal industrial complex to extort money from clients. What the father had done in the last week was so irrational and threatening and abusive he was scaring everyone. "He's scaring everyone. He's scaring Dr. Fidler. Whatever he was writing to Dr. Fidler scared her enough that she called the CAS." [In paragraph 3 of her affidavit, the mother had deposed that at 6:30 a.m. on June 5 she had received an email from Dr. Fidler expressing concerns about the children while in the father's care, based upon numerous threatening emails she had received from him yesterday and that Dr. Fidler had called the Children's Aid Society to report concerns of harm to the children.] Whatever he was writing to Dr. Fidler scared her enough to call the CAS.

[111] The father then asked the Court to take the time to read his emails to Dr. Fidler.

[112] The father's factum on the motion had contained the following:

There is only one email from Robert to Dr. Fidler of any substance in which Robert expresses frustration with the process, and which on its own could not reasonably have caused Dr. Fidler to call the CAS. Robert fully understands Dr. Fidler's frustration with his suggestion she had colluded with Tom Bastedo but that suggestion alone should not have shifted her perception of Robert from a party to a shared parenting agreement that she had mediated, to a threat to the children.

[113] In his motion materials, the father pointed out that he had requested copies of the mother's emails to Dr. Fidler and that they had not been produced. At the hearing of the motion before me, one of the mother's e mails to Dr. Fidler was produced for the first time, written early in the morning of June 5 in response to an inquiry from Dr. Fidler about what was happening. As quoted above, the mother wrote: "He's lost it completely. … He really believes holding them hostage is the right thing to do … I am going to call the police. …"

[114] Counsel for the father submitted before me that the mother had not included this email to Dr. Fidler in her materials before Justice Paisley and had not informed the Court about the content of her own discussions with Dr. Fidler. She had failed to disclose to Dr. Fidler and the Court that the father wanted a court date to deal with the lack of a residential schedule and was waiting to be served.

[115] Counsel for the mother read from an email from the father to the mother's counsel dated June 5. She quoted the portion "the children will remain with me until there's an agreed upon schedule." The balance of the father's email contained the following:

The children have absolutely no agreed upon schedule because your client is refusing to abide by the terms of the parenting coordination agreement I signed. There is no court order that can enforce a residential schedule. Your client has refused to discuss the children's residential schedule with me. These refusals are directly harmful to the children and vitiate the terms of the existing court order… I suggest we begin negotiating a temporary schedule immediately.

[116] The father accused the mother's counsel of cherry picking and again invited the Court to read all of the emails between the parties [all of which had been included in his affidavit].

[117] The Court said at page 29:

Well I am not in a position to conduct a minute examination of the emails and correspondence that is filed but I do take note of certain statements that have been brought to my attention… the primary objective is to ensure that children are protected and that a just result is reached in accordance with the law and applying judicial discretion fairly.

[Emphasis added.]

[118] He noted the father's statement that the mother had raped him in January 2011. Counsel before me submitted "rape" might not have been the right word for the father to have used. She insisted on sex when he was angry and did not want it.

[119] The Court then directed the father to his email to the mother on June 3, containing the following:

I want written confirmation as to whether or not you will be abiding by this schedule by 8 a.m. tomorrow. In the absence of confirmation the following will result. First the negotiated settlement in federal court file T1939-12 will be withdrawn; federal court of Canada did not file my notice of discontinuance…I will report both Samantha Chousky and Ian McKInnon to the Ontario Bar Association for ethics violations. The timing of these two incidents is not a coincidence and there is ample evidence they are in collusion and intentionally harassing me. Third I will not in any circumstances acquire an ILA regarding the negotiated parenting coordination agreement and that agreement will be null and void. Four, I will not negotiate any settlement in the family court matter in which you filed a motion for custody…Fifth I'll file a civil suit for harassment ... given your harassment of me ... Sixth I will file additional lawsuits for additional copyright violations…

[120] The father told the Court he wrote that letter. He said he regretted the statement about the parenting plan.

[121] [I note that after that letter was written the father did agree to get ILA so the agreement could be finalized, he did plead for the Fidler Agreement to be finalized in the best interests of the children, he did say once that happened everything would return to normal, etc.]

[122] The father said to the Court:

I think we ought to be talking about Eliot and Julien and what is in their best interest … I think it's really disturbing that I don't get my materials read also … Will you look at – this is the entirety of the correspondence between Ms. Mudry and I. If you're going to draw the conclusion that I'm irrational at the very least – and here are letters from my direct supervisors, people that spend time with me … Do you want to read the entirety of the correspondence … the accusation – at least they need to support it with some independent material if you're going to award custody of the children to Ms. Mudry and deviate from the existing parenting plan so radically.

[123] By this time the transcript reveals that the Court was already writing. The Court commented"I'm obliged to take steps to protect the children in this case." His endorsement read as follows:

I granted an ex parte order in this matter on June 6, 2014. The motion was returned before me today. The endorsement dated June 6 provides the applicant moves ex parte for an order granting her temporary custody to the children of the marriage. I am satisfied there are reasonable grounds to grant the relief claimed. The material reviewed the Applicant's affidavit sworn June 5 2014 and attachments. Inter alia the applicant alleges that the respondent has been preventing the children from attending school and has threatened that the children are not going to go to school and that the applicant will not see them until a schedule is in place that is agreeable to him. The Children's Aid Society has been contacted by Dr. Barbara Fidler. Her e-mail dated June 5, 2014 states that she has a reasonable suspicion of potential risk of harm to the children while in the care of their father. The order to be reviewed by me on the return date June 12th. My reasons for today are I am told that the Children's Aid Society is taking some steps to investigate this matter but I am not aware whether a file has been opened. My principal concern today was to determine whether there is a risk of harm to the children. The respondent concedes that he withheld the children from attending school. In the course of his submission, he stated that he believed that Dr. Fidler and Mr. Tom Bastedo were in collusion. His belief appears to be founded on the fact that Mr. Bastedo was previously retained by the applicant and Mr. Bastedo was a source of referrals and fees to Dr. Fidler. The respondent wrote to the applicant by e-mail on June 3, 2014 and inter alia stated that he required written confirmation that the applicant would be abiding by the children's schedule and that in the absence of written confirmation, he would withdraw a negotiated settlement in the federal court; would report Samantha Chousky and Ian McKinnon to the Ontario Bar Association for ethics violations as, quote, there is ample evidence that they are in collusion and intentionally harassing me; that the parenting coordination agreement will be null and void; that he will not under any circumstances negotiate any settlement to the family court matter in which you filed a motion for full custody, we will proceed to trial; and, I will file additional lawsuits for additional copyright violations based on expert computer forensics that show all of your academic publications were written by me. The respondent also wrote on June 4th, 2014 that the children are with me and will remain with me until they have a residential schedule. He also claims that the applicant raped him in 2011, that he reported the rape to the Toronto Police but that he was urged not to file a report, and that he has lived in constant fear of Ms. Mudry since the rape. He states, I am terrified of her and have no intention of ever speaking to her again. The respondent is a professor employed at a leading Ontario university. Nevertheless it is apparent to me that the respondent is mentally unbalanced, that his mental state will likely lead to emotional harm to the children if untreated, and that it would be inappropriate to permit him to have unsupervised access to the children at this time. A restraining order is to issue as requested by the applicant. If you fill out the pink form FLA 9D, which is necessary, we can discuss the terms.

THE COURT: Access shall be supervised. If the parties can not agree on the terms of supervision, access shall take place at a supervised access centre once per weekend for up to one hour.

The Test for GRANTING Leave to Appeal

[124] The test for granting leave to appeal to the Divisional Court from an interlocutory Order of a Judge of the Superior Court of Justice is set out in Rule 62.02(4) of the Rules of Civil Procedure. Leave to appeal may be granted if:

(a) There is a conflicting decision on the matter involved in the proposed appeal and in the opinion of the judge hearing the motion, it is desirable that leave to appeal be granted; or

(b) There appears to the judge hearing the motion good reason to doubt the correctness of the Order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[125] Rule 38(1) of the Family Law Rules O.Reg 114/9 provides that Rule 62 of the Rules of Civil Procedure applies to family law appeals. Therefore, the test for granting leave to appeal of an interlocutory Order made in a family law proceeding is the same as the test in other civil proceedings.

Rule 62.02(4)(b)

[126] The threshold to be met under good reason to doubt the correctness of the Order is whether the correctness is open to serious debate. It is not necessary to conclude that the Order is wrong or probably wrong. Mitchell Estate v. Ontario, 2003 CarswellOnt 3249 (Div. Ct) at para. 7; Major v. Major, 2009 CarswellOnt 3201 (Div. Ct) at para. 6; Smith v. Smith, 2010 CarswellOnt 2011 (Div. Ct) at para. 14.

[127] Counsel for the father submitted there is good reason to doubt the correctness of the decision because the Court radically changed the custodial and parenting arrangements in a manner that not even the mother had requested without having had the opportunity to fully review the father's materials in hearing oral submissions from the father.

[128] Counsel for the father submitted the Court reviewed only the mother's materials before the hearing.

[129] Here, the father was given no opportunity to make submissions but only to try to answer questions posed by the court. Robinson v. Morrison, 2000 CarswellOnt 2776 (S.C.J.) at para 12.

[130] The Court asked the father a few questions before making his Endorsement. The Court did not ensure procedural fairness or follow the rules of natural justice when he made the Order he did. "Before any substantive order is made, a litigant is entitled to an opportunity to respond to that case and entitled to an opportunity to be heard." Further, the failure to allow a party to make argument is enough to nullify a proceeding. Robinson v. Morrison, 2000 CarswellOnt 2776 (S.C.J.) at para. 12; Weick v. Rice, 2000CarswellOnt 3392 (Div. Ct) at para. 19; C. (N.M.) v. M.(B.), 2010 CarswellAlta 819 (Alta. C.A.) at para. 17.

[131] In Moudry v. Moudry, 2006 CarswellOnt 6010 (C.A.), the Court of Appeal held at para. 28 "The issues involved in this trial were very significant … the respondent proposed changing the custody of a child of tender years." Because the issues required an analysis of the best interests of a child, the need for procedural fairness was amplified.

[132] The Court erred in ordering very restrictive relief (one hour of supervised access per week) that was not sought by the mother, and despite the father having shared legal and residential custody of the children for the proceeding three years with the consent of the mother.

[133] He drastically varied a shared custodial regime formalized in a prior final court Order without alluding to any material change in circumstances.

[134] In Lowry v. Kushnir, 2007 CarswellOnt 3214 (Div. Ct), the court ordered a motion stayed until outstanding costs orders were paid, without reading the husband's affidavit or factum. In granting leave to appeal, Turnbull J. of the Divisional Court wrote at para 48:

…a just decision requires the court to make an informed decision and I respectfully have reason to doubt that the procedure followed was correct. Hence, I have reason to doubt the ultimate decision was correct.

[135] In Goslin v. Goslin, 1986 CarswellOnt 4811 (C.A.), the Ontario Court of Appeal reversed an order of a trial judge where neither party had asked for the relief given.

[136] In Bellefontaine v. Slawter, 2012 CarswellNS 327 (C.A.), the Nova Scotia Court of Appeal overturned a decision of a trial judge on the grounds of denial of procedural fairness where neither party had requested the relief granted.

[137] In my view, the Court did what he could to review the father's motion materials, given that he had not had the opportunity to review all of the materials before the hearing. On the mother's materials and the submissions made by her counsel, he was concerned about the safety of the children. Because he had not reviewed all of the materials, he may well have taken certain emails out of context, for example the June 3 email sent at 16:33, in concluding the father was a potential risk to the children.

[138] Had the Court had the opportunity to read the materials filed by the father, the father's suggestion that the counsel for the mother was cherry picking might well have been accepted by the Court. He might have recognized, for example, that the June 3 email sent at 16:33 that he quoted at length mentioning that he would not get ILA or negotiate any settlement, had been followed the next day on June 4 by the father's expression of willingness to seek ILA and his repeated pleas for the opportunity to negotiate a settlement.

[139] Among other things, the father's responding Affidavit that the Court had no opportunity to fully review before the commencement of the hearing, contained the following information:

(a) details of the history of the litigation and negotiations between the mother and the father, which resulted in the shared parenting regimes that had been in place between the date of separation (April 15, 2011) and the date of the ex parte motion (June 6, 2014);

(b) the father's perspective on the events that took place in the first week of June 2014, and why he made the decision not to send the children to school (i.e., to avoid exposing them to further conflict and involvement with the police);

(c) the father's difficulty in finding a lawyer to provide him with independent legal advice on Dr. Fidler's Parenting Coordination Agreement;

(d) all correspondence between the father and Dr. Fidler prior to Dr. Fidler's telephone call to the Children's Aid Society that the father submitted could not have reasonably warranted Dr. Fidler's decision to contact the Children's Aid Society. He suggested the mother might have given exaggerated information to Dr. Fidler causing her to have exaggerated concerns;

(e) Details of the father's telephone conversation with Ms. Shernette Whittle ("Whittle") of the Toronto Children's Aid Society on June 5, 2014. He said Whittle stated that she would not be attending at his home. She believed there was no immediate threat or protection concern. Nevertheless, the father requested that Whittle attend at his home to verify no protection concerns;

(f) It detailed the father's interaction with Police Constable Bradley Haywood, who came to his home on June 6, 2014, to enforce Justice Paisley's ex parte Order. He had been called to the father's home in the past following one of the mother's other complaints. The father deposed that Constable Haywood commended him for his cooperation and rational handling of the situation. After searching his home, he stated he had no reason to believe that the children were in danger. He further offered to cooperate in providing evidence as necessary in the litigation;

(g) It detailed the prior incidents when the mother had called the police and made allegations about the father, on which occasions the police had not pursued any of her allegations;

(h) It detailed Eliot's fear that the father would be arrested given the earlier police attendances at the father's home as a result of the mother's complaints to the police. The father said he had been advised not to take the children to school, to prevent the children from being exposed to police intervention yet again;

(i) It included each and every email exchange between the mother and father between January 1, 2013 and June 1, 2014. The father submitted it confirmed that contrary to the mother's sworn statement that the father "stalked" her and "often" emailed her "twenty times a day", and were threatening. He sent her two or three emails a day restricted to parenting related issues, except for on June 4, 2014 when he emailed her 17 times as a result of his concerns arising out of the lack of a residential schedule;

(j) It attached letters from the father's immediate superior and colleagues at the University of Waterloo, as well as a professor who specializes in child development at York University, attesting to the father's mental fitness, his abilities as a parent, his professional responsibilities and other aspects of his character;

(k) It provided a detailed account of the father's parenting role since the children were born, the wellbeing of the children while in his care and evidence that there had been no material change to justify a variation to the status quo; and

(l) It responded in detail to allegations made by the mother.

[140] Counsel for the father submitted a court cannot vary a custody order absent a specific finding of a material change in circumstances.

[141] The June 12 Order had the effect of varying a previous final Order, yet the June 12 endorsement contained no express finding of a material change, the effect of which would vary a previous final order. With no finding of material change, Justice Paisley had no jurisdiction to vary the final Order of June 12, 2012.

[142] In Persaud v. Persaud-Garcia, 2009 CarswellOnt 8851 (C.A.), the reasons of the court contain the following at para 3:

The motion judge was without jurisdiction to make the Order in question. As this court has made clear, jurisdiction to vary a custody access order is dependent on an explicit finding of material change in circumstances since the previous order was made.

[143] A material change must be substantial, unforeseen and long lasting. There has been no significant and continuing change such as to permit a variation. The Court did not specify any material change in circumstances to permit a variation. Marinangeli v. Marinangeli, 2003 CarswellOnt 2691 (S.C.J) at para. 49; Smith v. Helppii, 2011 CarswellNS 465 (N.S.C.A.) at para. 21; D. (K.) v. D. (N.), 2011 CarswellBC 3325 (B.C.C.A.) at para. 22.

[144] In a motion seeking leave to appeal an interim custody and access decision, the Divisional Court in Wiedrick v Lemesurier, 2006 CarswellOnt 281 (Div. Ct) stated at para 15:

A decision granting custody or determining access will frequently establish a status quo, which is almost impossible to alter at trial…..The responsibility of making such decisions is a heavy one. It is therefore extremely important that parties be provided with an explanation for a decision, which may well determine the course of their family life on a permanent basis.

[145] In McEachern v. McEachern, 1994 CarswellOnt 408 (OCJ – Gen. Div) at paras. 8 and 9, the court granted leave to appeal an interim custody and access Order that changed the status quo on the basis of the wishes of the young children expressed through an assessment report. The court stated that the interim Order "went contrary to the generally accepted principle that the status quo ought not to be changed on an interim basis in the absence of evidence that the existing arrangement is harmful to the children." The court further stated that "maintaining the status quo may not be, in every case, in the best interests of the child but I think there should be some compelling evidence to justify a change."

[146] The mother submitted although she had consented to the residential arrangements over a lengthy period, she was "scared" that the father would harm the children. If that were so, she did not explain why, even on June 12, she was proposing that the father have unsupervised access to the children.

[147] The Court, in finding the father "mentally unbalanced" had not had the opportunity to review the evidence in the father's Affidavit, in which he addressed the mother's allegations as to his mental fitness.

[148] Apart from quoting the father's June 3 email referring to Dr. Fidler's call to the CAS and the father's suggestion that Dr. Fidler had colluded with Tom Bastedo, and his mention of rape, the Court did not explain why it was "apparent" to him that the father was "mentally unbalanced" or how his "mental state" had changed such that it "would be inappropriate to permit him to have unsupervised access to the children at this time" or why only supervised access to the children was appropriate, when even on June 12 the mother was not requesting that his access be supervised.

[149] Given all of the above considerations, I am of the view there is good reason to doubt the correctness of the decision.

The "Matter of Importance" Requirement

[150] In order to satisfy the "matter of importance" requirement, a party seeking leave must show that the matter involves a question of general or public importance. H. L. Staebler Co. v. Allan, 2004 CarswellOnt 3277 (S.C.J.) at paras. 11-13

[151] Counsel for the father submitted that where procedural and substantive rights have been arguably significantly prejudiced and where issues of natural justice and procedural fairness are involved, matters of public importance have been raised.

[152] The effect of the Order below is that the father has gone from a shared custodial parent (for 3 years) with equal parenting time to barely an access parent with one hour of supervised access a week, in circumstances where there was at least an appearance that he had not been afforded an opportunity to be fully heard.

[153] In Kenora Prospectors & Miners Ltd. v. Green, 2008 CarswellOnt 2321 (Div. Ct), J. Macdonald J. for the Divisional Court opined that the right to be heard meets the public importance test, and stated the following at para 11:

The right of a party to be heard on the merits of the position which it wishes to argue in court is one of the hallmarks of justice. The right to be heard is one of the foundations of public respect for, and confidence in the court. In turn, public respect for, and confidence in the court and its processes are fundamental to the court's ability to discharge its important role.

[154] J. Macdonald J. referred not only to the potential for a denial of justice, but also to the potential for the appearance of a denial of justice.

[155] In custody and access matters, where temporary Orders often create a status quo that is difficult to alter at trial, interim orders are of particularly importance. In referencing the second part of the test set out in Rule 62.02(4)(b), the Divisional Court in Wiedrick v. LeMesurier 2006 CarswellOnt 281 (Div. Ct) at paras 14 and 15 had "no difficulty concluding that an order relating to interim custody and access falls into this category."

[156] Given all of the above, I am of the view that there is good reason to doubt the correctness of the June 12 Order and that this is a matter of public importance. Therefore I am of the view that leave to appeal should be granted.

[157] By making this Order, I want to make it clear that for reasons beyond his control, Paisley J. was put in an untenable position. He should have had but did not have the father`s affidavit and factum available for his review before the motion. As he said, his standard practice would have been to read everything.

[158] On the information he was able to read, he clearly felt if the children needed protection, he must act immediately. He was understandably concerned given that he had been told that Dr. Fidler had called the CAS to express concerns about the father's stability based on the father's emails to Dr. Fidler. However, had he had the opportunity to review all of the father's motion materials, including the father's emails to Dr. Fidler, he may well have concluded that Dr. Fidler must have based her conclusion in part on something apart from the father's emails. Had he been given the June 5 email from the mother to Dr. Fidler, he would have known the mother was asserting to Dr. Fidler that the father had "completely lost it, that he was holding the children hostage."

[159] I have found good reason to doubt the correctness of that conclusion because I am of the view that if he had had the opportunity to fully review all of the materials, including all the exhibits to the father's affidavits, and had he seen the one email of the mother to Dr. Fidler [that was not provided to him but was only provided to me on July 10], he may well have concluded that despite the father's intemperate language in the email to the mother on June 3, 2014, and his suggestion that Dr. Fidler had colluded with Tom Bastedo, he was balanced enough in the ensuing days to agree to seek ILA so Dr. Fidler would continue to act and to plea for negotiation of a residential schedule or court date to schedule one, and to commend Dr. Fidler's plan because he understood that that would be in the best interests of the children. He would have considered that the mother had already agreed to the residential schedule the father was seeking to get implemented. It was not something new he was unreasonably and arbitrarily seeking to impose.

[160] Had he had the opportunity to review all of the father's materials, he may well have concluded that the mother had refused to honour the long-standing agreement within hours after the father had signed a release in their Federal Court dispute. In other words, he may well have had some basis to believe the mother had waited to renege on her earlier agreement on the residential schedule until hours after the father had released his claim against her in the Federal Court action.

[161] Paisley J. concluded in part the father was mentally unbalanced because the father wrote on June 3 he would report Ms. Chousky to the Bar Association for ethical violations.

[162] Had he had an opportunity to fully review the father's materials, he would have been aware that the next day, June 4, he was working with Ms. Chousky so he could obtain ILA so the Fidler agreement could be finalized.

[163] Paisley J. concluded in part the father was mentally unbalanced because the father wrote on June 3 he would not negotiate a settlement of the family court matter. Had the Court had the opportunity to read all of the materials, including all of the emails from the father the next day, he may well have concluded that the father was not refusing to negotiate but was pleading with his wife to negotiate. That may well have caused the Court to reach a different conclusion about the father's "irrationality" and his need to protect the children from the father.

Law – Issue Two

Stay Pending Appeal

[164] Interlocutory custody and access orders are not automatically stayed pending appeal but can be stayed pending appeal on "such terms as are just by an order of a judge of the court to which a motion for leave to appeal has been made." Rule 38 of the Family Law Rules, O.Reg. 114/99; Rule 63 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194

The Test For A Stay Pending A Custody And/Or Access Appeal

[165] The test for staying a custody or access order pending an appeal is similar to the test for an interlocutory injunction but is subject to the overriding consideration of the child's best interests. The parent seeking the stay must establish: a) A serious question that the trial judgment is wrong; b) Irreparable harm to the child if a stay is not granted; and c) The balance of convenience favours granting a stay. Lefebvre v. Lefebvre, 2002 CarswellOnt 4325 (C.A.) at para. 6.

[166] All three parts of this test are interrelated. The strength of one element can compensate for any weakness in another part. Injunctions and Specific Performance R. Sharpe, looseleaf (Aurora, Ontario: Canada Law Book, 2009) at para. 2.450 includes the following:

[T]he test is a relative and flexible one which, it is submitted, necessarily involves an evolution of other factors. Indeed, it has been held that an interlocutory injunction may be granted even where "irreparable" harm has not been demonstrated. Similarly, attempts to make irreparable harm a condition precedent, and hence a threshold test, have been rejected. … If the plaintiff's case looks very strong, harm may appear to be more 'irreparable' than where the plaintiff has only an even chance of success. While judges seldom explicitly acknowledge that there is an "overflow" effect produced by strength or weakness of other factors, it cannot be doubted that, as a practical matter, it exists.

[167] As Justice Watson noted in G. (A.) v. B. (J.)"in considering a stay in custody or access cases, a modified tripartite test applies to reflect the paramount importance of the best interests of the child. … As such, one has to look at the three parts of the test holistically, connecting irreparable harm with balance of convenience when little children are involved." G. (A.) v. B. (J.), 2008 ABCA 61, 2008 CarswellAlta 191 (C.A.) at paras. 11-12.

(a) Serious Issue

[168] This part of the test involves a low threshold. It can be met as long as the question raised by the appeal is not "frivolous or vexatious." Circuit World Corp. v. Lesperance, 1997 CarswellOnt 1840 (C.A.) at para. 9; Ontario v. Shehrazad Non Profit Housing Inc., 2007 CarswellOnt 2113 (C.A.) at para. 19.

[169] Here, the father's appeal is neither frivolous nor vexatious. The facts reveal serious concerns about a process that has resulted in a temporary custody and access Order that has drastically changed the status quo to which the mother had earlier consented.

(b) The Children Will Suffer Irreparable Harm If Robert's Request For A Stay Is Refused

[170] The caselaw defines "irreparable harm" as "harm which either cannot be quantified in monetary terms or which cannot be cured[.]" That being said"irreparable harm has not been given a definition of universal application: its meaning takes the shape in the context of each particular case." R. Sharpe, Injunctions and Specific Performance, looseleaf (Aurora, Ontario: Canada Law Book, 2009) at para. 2.450; Ontario v. Shehrazad Non Profit Housing Inc., 2007 CarswellOnt 2113 (C.A.) at para. 25; Patriquen v. Stephen, 2010 CarswellNS 578 (C.A.) at paras. 8-10.

[171] In custody and access cases, irreparable harm and the balance of convenience are inextricably linked and "distils into an analysis of whether the stay's issuance or denial would better serve, or cause less harm to, the child's interest". G. (A.) v. B. (J.), 2008 ABCA 61, 2008 CarswellAlta 191 (C.A.) at para. 12 where Justice Watson noted that"one has to look at the three parts of the test holistically, connecting irreparable harm with balance of convenience when little children are involved." Reeves v. Reeves, 2010 CarswellNS 39 (C.A.) at para. 21.

[172] The harm to Eliot and Julien if a stay is not granted can be summarized as follows: As this Court noted in Elliott v. Elliott, both quantity and quality of time are important considerations. From the date of separation, three years prior to Justice Paisley's Order, the father and mother shared legal and residential custody of the children. For the past 9 months, the father and mother have implemented an equal time share, and have had the children in their care on a "2-2-5-5" basis. The Order of June 12 limited the father's access to supervised access for one hour per week, an order which the mother did not ask the Court to order. The children who are used to a shared parenting arrangement must now see their father in a supervised environment. This is a very substantial change for 7 and 6 year-old boys who have spent the last three years in a shared parenting regime. There is a risk that the elimination of the father's role in the children's daily lives will cause irreparable harm.

[173] If leave to appeal is granted, the father's appeal will not he heard until at least the week of August 25, 2014, the next available sitting, and maybe even later. If a stay is not granted, there is the prospect that the new status quo, which the mother did not request, will persist.

(c) The Balance Of Convenience Favours Granting A Stay

[174] The balance of convenience stage of the analysis "requires balancing the harm that would be suffered by each party" and, in custody and access cases, the harm to the children. Lefebvre v. Lefebvre, 2002 CarswellOnt 4325 (C.A.) at para. 6; Ontario v. Shehrazad Non Profit Housing Inc., 2007 CarswellOnt 2113 (C.A.) at para. 27; Reeves v. Reeves, 2010 CarswellNS 39 (C.A.) at para. 21.

[175] In her own evidence before Justice Paisley, the mother deposed that she had been willing to continue the status quo arrangement and formalize the shared Parenting Plan as late as June 4, 2014, as long as the father retained counsel to provide ILA on Dr. Fidler's Parenting Coordination Agreement. I note that this was the day after the father`s letter to her dated June 3 upon which the Court heavily relied in concluding he was unbalanced. At that time she obviously viewed a return to the shared parenting regime as being viable.

[176] Even on June 12 the mother did not request that the father's access to the children be supervised. Had she believed the father presented a danger, she would not have sought the relief she did.

DISPOSITION

[177] Leave to appeal is granted.

[178] An Order will go staying the Order of June 12 until the trial or further Order of this court or the Superior Court.

[179] Since the uncontradicted evidence is that the parties had agreed on the Fidler residential schedule and since the cause of the emergency was the lack of a residential schedule, that schedule should be put into effect immediately in the best interests of the children without prejudice to the right of either party to bring a motion in the Superior Court to vary this Order.

[180] I am mindful of the mother's expressed concern that Dr. Fidler's involvement was and is essential. The father should get ILA as Dr. Fidler has requested. When he does, Dr. Fidler will hopefully overlook his offensive comments in his June 3 email about collusion with Tom Bastedo and agree to continue to act. If not, a further Order of the Superior Court may be necessary in the near future.

[181] Costs submissions may be made in writing by August 25, 2014.

M.A. SANDERSON

Released:

Citation: Mudry v. Danisch, 2014 ONSC 4335

Divisional Court File No. 305/14

Date: 20140718

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

JESSICA MUDRY

Applicant (Respondent in Appeal)

• and –

ROBERT DANISCH

Respondent (Appellant)

REASONS FOR DECISION

M.A. SANDERSON J.

Released: July 18, 2014