ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

CITATION: Leeming v. Leeming, 2016 ONSC 1835

DIVISIONAL COURT FILE NO.: DC- 16-0935-00

DATE: 20160315

BETWEEN:

Cherie Leeming Appellant

• and -

Jason Leeming Respondent

COUNSEL:

Martin J. Prost, for the Appellant/Respondent

Jason Leeming, on his own behalf

HEARD: March 10, 2016

RULING ON MOTION TO STAY

GILMORE J.:

Overview

[1] This is the appellant Mother’s (“the Mother’s”) motion for a stay of the order of Wildman J. dated February 18, 2016 (“the order”), except for paragraph 2 of that order, with which the appellant takes no issue.

[2] The Mother seeks to set aside Wildman J.’s contempt order on the grounds that she failed to consider the children’s best interests and imposed a change of custody in the form of a penalty for contempt, without hearing submissions or giving the Mother an opportunity to purge her contempt.

[3] The respondent Father (“the Father”) opposes the stay of the order. He is enjoying the additional access time afforded by the order, as well as the opportunity to be with the children over March Break and to make up time that was denied to him in the past. He submits that the Mother’s behaviour leading up to the contempt order was consistent with Eberhard J.’s findings in the trial decision of June 5, 2015 (“the trial decision”).

Background

[4] The Mother is the respondent in a Children’s Law Reform Act (CLRA) custody proceeding brought in the Unified Family Court in Barrie.

[5] The parties have two children: Jackson, born September 19, 2005, currently aged 10, and Benjamin, born January 19, 2008, currently aged 8.

[6] After a five-day trial in June 2015, Eberhard J. granted the parties joint custody of the children with primary care to the Mother. The order provided that the Father have alternate weekend access (including contiguous holidays), as well one overnight each week. The weekly overnight access was to occur each Wednesday with both children, except for where their sports activities required separate nights. The order also provided for additional holiday access, including one week in July and one week in August, March Break in odd numbered years, every Father’s Day and half of each Christmas Break, including Christmas Day at noon until Boxing Day at 7:00 p.m.

[7] Eberhard J. outlined the difficult history of the parties’ conflict in her Judgment. Accordingly, she was very specific about adherence to the parenting schedule, as follows: “If there is no agreement, the [parenting] schedule as ordered MUST be followed. No agreement in writing except as recorded in Family Wizard or formal signed agreement on paper in duplicate will suffice.”[^1]

[8] Notably, Eberhard J. was critical of the Mother’s behaviour in her Judgment. Recounting the Mother’s alienation of a family friend and caregiver for the children, she stated, “Here is objective evidence of the wild, profane, devastating, unreasonable fury the Mother displays when her ideal is not met.”[^2] This type of comment was reiterated throughout the Judgment as an explanation for the escalation of problems with the Father and others to the point where she found that the children were in need of protection.

[9] Eberhard J. also criticized the Father as being insensitive to the children’s needs and for using inappropriate discipline. However, Eberhard J. felt his parental deficits could be overcome by “instruction and court order”. She found that the Mother “runs forward to pursue conflict with all speed and vigour”, whereas the Father tries to walk away from conflict.[^3]

[10] As a result of an alleged incident on December 19, 2015 between Jackson and the Father, the Mother suspended access to the children as of December 22, 2015. The Father brought a motion for contempt before Wildman J. on February 18, 2016, alleging two specific incidents of contempt on the part of the Mother. Wildman J. dismissed the first allegation but found the Mother in contempt with respect to the denial of access commencing December 22, 2015.

[11] After finding the Mother in contempt, Wildman J. went on to determine an appropriate penalty. In doing so, she specifically adverted to Chan v. Town,[^4] in which the Ontario Court of Appeal reinforced the principle that a change in custodial arrangements cannot be used as a punishment for contempt. Wildman J. set out as follows:

In my view, the “custodial” arrangement does not need to be changed yet but there must be some makeup time implemented to reinforce for Mother, and the boys, that the Order about the boys’ time with their father needs to be respected. The boys need time, after this interruption in the schedule of time with Father, to re-establish a relationship with him, free from the interference clearly being presented by Mother (I am referring to the anger Mother has directed to the Parenting Coach, the CAS, and the police when they would not intervene to disrupt Father’s access.)

Father also needs some vacation time, which cannot make up for the loss of any time at Christmas (for the 2nd year in a row) or time on Jackson’s birthday. ...For this reason, I am going to order that Mother’s March Break with the boys be forfeited and that time will be spent with Father. Thereafter, the regular schedule resumes, so next March Break (2017) will also be with the Father.

…Given the time that Father is already entitled to under the Order, I have decided that the makeup time is to be implemented by instituting a temporary week about schedule to the end of the school year. The weeks about should start either this Friday or next, so that they will result in the children being with their Father for March Break.

[12] As a result of the order, the Father picked up the children on February 26, 2016 after school and returned them to school on March 4, 2016. Based on the order, he will have the children for March Break commencing after school on Friday March 11, 2016 and each alternate week until July 1, 2016.

Jurisdictional Issue

[13] Mother’s counsel raised a preliminary issue with respect to whether the stay and appeal should be heard in Divisional Court or the Court of Appeal.

[14] In Christodolou v. Christodolou,[^5] the Court of Appeal held that an appeal from a family court order dismissing a Hague Convention application lies to the Divisional Court. Specifically, it held that child custody orders under Part III of the CLRA made at a Family Court location are captured by s. 21.9.1 of the Courts of Justice Act (“CJA”) and must be appealed to the Divisional Court.

[15] In Marchildon v. Beitz,[^6] the Ontario Court of Appeal followed the reasoning in Christodolou, and referred the appeal of a custody order made pursuant to s. 23 of the CLRA back to the Divisional Court.

[16] The case at bar differs from the above cases, in that the finding of contempt is a final order, for which the appeal lies to the Court of Appeal, as per Bush v. Mereshensky.[^7] That case dealt with contempt in relation to financial matters and the freezing of the husband’s bank accounts. Although the Judgment does not refer to the relevant statute, it is clear the matter did not relate to custody or access.

[17] The question remains as to whether an order arising from contempt in relation to a custody and access order made under the CLRA would follow the reasoning in Christodolou and Marchildon or that in Bush. However, the recent case of Godard v. Godard [^8] appears to be directly on point. That case involved the appeal of a contempt order related to the alleged breach of an access order; it was decided by the Court of Appeal.

[18] Therefore, I am not convinced that the fact the contempt originated from an order made under the CLRA is of any import. The stay and the appeal should be heard by the Court of Appeal, as it is an appeal from a final order of contempt. If I am wrong on this jurisdictional point, I would not have granted the stay sitting as a single judge of the Divisional Court. My Reasons are set out below.

The Test for a Stay Pending Appeal

[19] The parent seeking a stay in a custody or access appeal must establish the following:

a) There is a serious question that the order appealed from is wrong or at least open to serious debate;

b) There will be irreparable harm to the child if the stay is not granted; and

c) The balance of convenience favours the granting of a stay.

[20] It must be noted that the test is subject to the overriding consideration of the children’s best interests. As well, the components of the test are interrelated and “the strength of one element can compensate for any weakness in another part.”[^9]

Part I – Is the Order Wrong or Open to Serious Debate?

[21] Turning to the first part of the test, and with respect to the finding of contempt itself, it does not appear to be wrong on its face. Eberhard J. was very clear that the parenting schedule was not to be changed except by agreement in writing or by court order. The Mother unequivocally withheld access in breach of the order. She did not deny this. There was no issue as to the clarity or meaning of Eberhard J.’s access order. The basis for the contempt finding in a non-family law setting would be difficult to challenge.

[22] However, the Mother raises several arguments related to the best interests requirement in the family law context, which I will address in turn.

The Motions Judge Failed to Consider the Children’s Best Interests

A. Events Post-Judgment and the Children’s Alleged Refusal to Attend for Access

[23] The Mother argues that she made the choice to suspend access to protect the children and that the motions judge failed to appreciate the evidence of both the growing conflict in the Father’s home and the children’s fear of returning there. Her counsel referred to various CAS records made between June 8, 2015 and December 19, 2015, which show that Jackson rated his time with his Father as a 7/10 in July 2015, but by November 2015, that had reduced to 5/10. There was a note that the Father had punched Jackson in the leg but the Father denied this. There were also notes that Ben was becoming increasingly upset about the yelling and fighting between Jackson and his Father. Jackson also reported that his Father was drinking beer, despite a court order prohibiting him from drinking during his access time. The Mother decided to withhold access because the children, Jackson in particular, said they were afraid of their Father and did not want to visit with him. She was concerned about their well-being and their safety.

[24] The Father denies the Mother’s allegations. He refers to Eberhard J.’s comments about the Mother in the trial Judgment, the fact he has missed Christmas with his children for two years in a row and the Mother’s unrelenting and unwavering position that her view of the world is the only correct one.

[25] The December 19, 2015 incident related to a conflict between Jackson and the Father. Jackson wanted his Father to buy him an 18+ video game and the Father refused. Jackson became very upset and there was some conflict, but the Father denies that he hit his child.

[26] The Father points out that the CAS has taken no steps to seek a supervision order, despite Eberhard J.’s request that they do so if the situation declined. He also refers to the fact that the Mother claimed to have photos of Jackson’s alleged bruises from the December 19, 2015 incident, but the alleged marks do not show up in the photos. Further, the Mother notified the police who came to the Father’s home. They took no further steps, although the Mother (according to the CAS records) threatened to lodge a complaint against the police if they did not take action.

[27] The Father reports that he has set up counselling with the children and that he has undergone all of the counselling required by the court, plus some additional counselling and parenting courses. His access with the children during the week commencing February 26, 2016 went very well and he and the children were able to celebrate a joyful but belated Christmas.

[28] During the course of argument, the court confirmed that the CAS records referred to by the parties were before Wildman J. I infer, therefore, that she knew of them and made her findings in that context.

[29] It is not clear what happened on December 19, 2015. Jackson said that his Father hit him. His Father denies this. Neither the Father’s partner nor Ben saw anything. The police and CAS have not taken any steps regarding this incident. While the Mother insists that an assault occurred, that statement must be taken in the context of her history with this court. In her Judgment, Eberhard J. stated, “Despite the passage of time, the support, the several interventions and counselling, the Mother’s distress and fury are raw, profound and, at least potentially, injurious in their destructive immensity.” Therefore, I do not accept that there is clear evidence that the motions judge’s order did not consider the children’s best interests in this regard. She was well aware of the post-judgment history of this matter, as she had all of the relevant material before her and made specific reference to the alleged assault against Jackson in her Reasons.

B. The Motions Judge Imposed a Change in Custody in the Form of Penalty for Contempt

[30] The Mother’s counsel submitted that the order is clear that Wildman J. determined that the mother was in contempt and then went on to consider what penalty should be imposed. She did so without asking for submissions, and further, she imposed a change in custody as a form of punishment. The case law is clear that this is not permitted.

[31] First, it should be pointed out that Wildman J. did not impose a change in custody. In fact, she was clear that she was NOT changing the custodial arrangement, but rather, providing make-up access for the Father. The joint custodial arrangement with the Mother having primary care of the children remains intact.

[32] The Mother argues that Wildman J. did not analyse the children’s best interests in making this change and, by instituting a week about parenting schedule, did exactly what the trial judge found to be inappropriate. At para. 43 of the trial Judgment, Eberhard J. reflects on the OCL’s findings that shared parenting could not work because of the level of adult conflict, which Jackson’s personality could not handle. She adopts those findings in making her order for joint custody with an access schedule that does not reflect a traditional shared parenting scheme.

[33] Much reference was made to the Chan v. Town decision.[^10] In that case, the Mother manipulated the child into believing she could go on a trip with the Mother to Europe over March Break. As a result, the child refused to go with her Father to Whistler for his regularly scheduled March Break access. The motions judge found the Mother in contempt and changed custody of both children from the Mother to the Father until August of that year. The Court of Appeal set aside the contempt order, finding that a change in custody was not an available remedy for contempt under Rule 31(5) of the Family Court Rules.

[34] The Mother’s counsel argues that the changes imposed by the motion’s judge penalized both the Mother and the children, contrary to the principles in Chan and, in light of Eberhard J.’s findings, the best interests of the children. As well, counsel argues that Wildman J. went well beyond this by giving the Father what amounted to two-for-one credit on the missed time. She calculated he had missed 31 days of access and gave him 62 days of make-up time.

[35] It is not clear to this court that the changes in access imposed by Wildman J. were wrong to the point of meeting the first part of the stay test. First, she did not change custody. She was clear that this was not her intention. Second, she changed access only to the point of giving the Father the access she determined he had missed.

[36] On the issue of the two-for-one missed time, it is also not clear that the motions judge was plainly wrong. She had reasons for doing so. The first was that the boys had missed Christmas with their Father for the second year in a row. As well, the children needed time to re-establish a relationship with their Father, free from any interference from the Mother. At this point in the proceedings, it cannot be said that the reasoning was flawed to the point of not meeting this part of the test.

Part 2 – Will There be Irreparable Harm to the Children if the Stay is not Granted?

[37] The Mother submits that placing the children back into their Father’s home will cause them irreparable harm. She points to evidence that the children have shown declining comfort during their access visits, that they have been the subject of their Father’s aggressive behaviour and that the Father has declined counselling until recently. She does not seek to change the access ordered by Eberhard J., but she does not agree to the week about schedule ordered by Wildman J. This seems to be a strange position to take, given her original insistence that access be suspended entirely. The harm to the children which seemed so imminent to the Mother seems to have substantially diminished.

[38] It must be mentioned that Eberhard J. found that the Mother was causing her own form of harm to the children. She set out at para. 30 of her Judgment, “I find, on all the evidence, the Respondent Mother’s obsessive insistence on her own parental values creates [a] degree of ongoing dispute that has and is causing injury to the boys.”

[39] Given the findings of both the motions judge and the trial judge, it is difficult to accept that allowing the children to have their missed vacation and access time with their Father would cause them any irreparable harm. Indeed, there is an argument that the Mother’s unilateral actions in keeping the children from their Father may have caused them a form of harm.

[40] I would not grant the stay based on the second part of the test.

Part 3 – Does the Balance of Convenience Favour Granting a Stay?

[41] This stage of the analysis requires a balancing of the harm to the parties and to the children. Not much need be said on this point that has not already been said save that the new access schedule has now been in effect for several weeks and changing it yet again by implementing a stay would be inconvenient at best, and at worst, have a further negative effect on the children as it will undermine the stability of their schedule.

[42] I would add as well that the change in access is for a very temporary period: only four months. Given the young ages of the children this is a short period of time.

[43] There is no reason to grant a stay based on this part of the test.

Order

[44] Given all of the above, the motion is dismissed.

[45] Costs of the motion are fixed at $1500 with payment of the costs to be determined by the Court of Appeal.

Justice C. Gilmore

Released: March 15, 2016

[^1]: Trial decision of Eberhard J. dated June 5, 2015, at para. 58. [^2]: Ibid at para. 16. [^3]: Ibid at para. 28. [^4]: 2013 ONCA 478, 34 R.F.L. (7th) 11. [^5]: 2010 ONCA 93, 75 R.F.L. (6th) 266. [^6]: 2012 ONCA 668, 23 R.F.L. (7th) 316. [^7]: 2007 ONCA 679, 43 R.F.L. (6th) 267. [^8]: 2015 ONCA 568, 387 D.L.R. (4th) 667. [^9]: Mudry v. Danisch, 2014 ONSC 4335, 48 R.F.L. (7th) 176. [^10]: Supra, note 4.