Court File and Parties
CITATION: McNeil v. Barrett, 2018 ONSC 212
COURT FILE NO.: DC18/17
DATE: January 17, 2018
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Alexandria McNeil, applicant (appellant)
AND:
Julien Barrett, respondent (respondent in appeal)
BEFORE: MITROW J.
COUNSEL: Selin Hankali for the appellant Stephanie Ouellette for the respondent in appeal
HEARD: December 21, 2017; written submissions due December 31, 2017
Endorsement
Introduction
[1] The appellant brings this motion pursuant to r. 63.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to a judge of the appellate court to stay the final order of Hebner J. (“trial judge”) dated June 12, 2017, made after a trial, dealing with custody and access in relation to the parties’ child born August 6, 2008.
[2] The final order was made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12 and the trial was heard in the Family Court. Accordingly, given the combined effect of s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and s. 73 of the Children's Law Reform Act, the appeal as of right lies to the Divisional Court: Marchildon v. Beitz, 2012 ONCA 668 (Ont. C.A.) [In Chambers].
[3] For reasons that follow, the motion is dismissed.
Brief Background and the Trial Judge’s Reasons for Judgment
[4] The parties, who were never married to each other, are the biological parents of the child. The application was commenced in January 2009 when the child would have been approximately five months of age. The trial judge found that the parties resided together for approximately a year and that the separation occurred when the child was approximately three months of age.
[5] As a result of interim orders made in 2009, the appellant had custody of the child and the respondent had access, with the regular access schedule being alternate weekends and Wednesday evenings. Later, the Wednesday access was discontinued on agreement of the parties, as found by the trial judge.
[6] The trial judge referred to this matter being “dormant” for a number of years. At the time of trial, the child remained in the applicant’s primary care with the respondent exercising his regular access.
[7] The respondent deposes that, in October 2014, he received a notice of approaching dismissal and that he attended in court to ensure that the case proceeded and was not dismissed.
[8] The trial judge had before her a report from the Office of the Children’s Lawyer (OCL) filed pursuant to s. 112 of the Courts of Justice Act.
[9] The respondent complained that he had been unable to obtain the child’s school records until he obtained a court order in March 2016 allowing him to do so.
[10] The trial judge’s reasons focus substantially on the trial evidence regarding the child’s poor attendance record at school, including being late numerous times, suspensions from school and the child’s poor academic record.
[11] At para. 24 of her reasons, the trial judge refers to a period when the child’s school attendance was characterized as “abysmal.” The trial judge referred to the appellant’s evidence that if the child’s sister (referring to a different child of the appellant by another relationship) is sick, then the appellant would allow the child to stay home also because, according to the appellant, it was not fair to have the child go to school if his sister stays at home.
[12] The trial judge found that the appellant had failed to advise the respondent of the child’s difficulties and suspensions at school, and that the appellant did not have an explanation for her failure to do so.
[13] After considering the “best interests” factors in s. 24(2) of the Children's Law Reform Act, the trial judge found, at para. 33, that the determination of custody would “depend entirely” on which parent is able to ensure the child’s academic success in school. The trial judge found that the child is behind “significantly” in school because the appellant has been unable to ensure that the child attended school daily and on time. The trial judge made findings that the appellant does not understand the importance of the child’s success at school, that the appellant fails to appreciate the importance of consistent and timely school attendance and that school is not made a priority in the appellant’s home.
[14] The trial judge examined the respondent’s plan to ensure school attendance, considered the child’s wishes as set out in the OCL report and considered the recommendations contained in the OCL report. The trial judge acknowledged, in para. 36, the general reluctance of the courts to change long-term existing childcare arrangements.
[15] The trial judge ordered that the parties have joint custody of the child but that the respondent should be entitled to make decisions in the event of any disagreement over decisions.
[16] The trial judge ordered that the child reside equally with the parties during the summer of 2017, but thereafter the child was ordered to reside primarily with the respondent, and with the applicant to have access on alternate weekends and every Wednesday from 4 p.m. to 7:30 p.m. during the school year. All holidays, including summer, were ordered to be shared equally.
The Grounds of Appeal
[17] The appellant lists 33 grounds of appeal; however, the grounds are inter-related and somewhat repetitive and can be grouped into two main categories – (1) the changing of the long-term status quo; and (2) procedural issues.
[18] In relation to the change in status quo, the grounds of appeal allege, generally, that the trial judge erred in her assessment of the evidence and erred in making a final order that changed the long-term status quo.
[19] Regarding procedural issues, a number of those grounds of appeal refer to the appellant not being ready to proceed to trial, allege that the appellant was not aware that the trial was proceeding and that the trial judge erred in not granting the appellant an adjournment to better prepare and/or retain counsel. However, the evidence on the motion indicated that on March 23, 2017, Henderson J. ordered the trial to proceed as scheduled and on a peremptory basis given that the proceeding had been commenced in 2009; further, the motion material indicated that the appellant had been served personally with this endorsement.
[20] Also in relation to procedural issues, there is evidence in the motion material that the parties had signed final minutes of settlement in October 2010 which, according to the appellant, should have been, but never were, made into a final order. These minutes of settlement are handwritten and provide for an access schedule to the respondent. However, the minutes of settlement state that they are subject to the appellant receiving independent legal advice. The respondent deposes that the appellant failed to get independent legal advice and, for that reason, no final order was obtained based on minutes of settlement.
[21] The grounds of appeal rely on the minutes of settlement in alleging that the trial judge erred in failing to consider at trial whether the respondent had met the threshold of material change in circumstances. There can be no merit to the grounds of appeal associated with the 2010 minutes of settlement as there was no final order based on those minutes of settlement.
[22] The appellant seeks an order setting aside the final order and ordering that the child continue to reside with the appellant, with access to the respondent. Alternatively, the appellant seeks a new trial.
The Test on a Motion to Stay
[23] In RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, a three-part test was summarized and was noted as applying to both injunctions and a stay:
48 Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. It may be helpful to consider each aspect of the test and then apply it to the facts presented in these cases.
[24] In appeals involving custody and access matters, the three-part test for a motion to stay pending appeal is formulated as follows: (1) whether the appeal raises a serious issue that the trial judgment is wrong; (2) whether a child will suffer irreparable harm if a stay is not granted; and (3) whether the balance of convenience favours a stay; further, the overriding consideration, reflected in the three-part test, is the child’s best interests, and the court must be satisfied that it is in the child’s best interests to order a stay: Lefebvre v. Lefebvre, [2002] O.J. No. 4885 (Ont. C.A.) [In Chambers], para. 6; see also Berry v. Berry, 2010 CarswellOnt 10983 (Ont. C.A.) [In Chambers].
[25] The first part of the test, whether the appeal raises a serious issue, needs some elaboration given the decisions from the Court of Appeal for Ontario as to the proper test for determining whether there is a “serious issue” that the trial judgment was wrong.[^1]
[26] In Circuit World Corp. v. Lesperance, 1997 CarswellOnt 1840 (Ont. C.A.) [In Chambers], Laskin J.A. held that “serious issue” is a low threshold and found in that case that the error alleged by the appellants was far from a frivolous issue. The following is stated at para. 9:
(1) Serious Question
9 This case is not an exception to the general rule that on a motion for a stay the court should not extensively review the merits of the appeal. Here the appellants must show only that the appeal raises a serious issue. This is a low threshold. In my view the appellants raise the serious question whether Somers J. erred by, in effect, penalizing innocent union members, by prohibiting them from peaceful picketing even though they were not found in contempt. Whether this was a proper sanction for a finding of contempt against five named individual appellants is far from a frivolous issue. I am satisfied that the appellants have met the first criterion for a stay.
[27] In Ontario v. Shehrazad Non Profit Housing Inc., 2007 ONCA 267, 85 O.R. (3d) 81 (Ont. C.A.) [In Chambers], MacPherson J.A. cites Circuit World Corp., supra, and finds that in deciding whether a serious issue is raised on appeal, it must be determined that the issues raised are not frivolous or vexatious. The following is stated at para. 19:
19 In Circuit World, Laskin J.A. held that this first part of the test constitutes a low threshold. At p. 677, he wrote that the court "should not extensively review the merits of the appeal," but it must determine that the issues raised are not frivolous or vexatious.
[28] In Fiala Estate v. Hamilton, 2008 ONCA 784 (Ont. C.A.), Doherty J.A., after referring to the three-part test, finds that a “serious issue” in the context of an appeal is a ground of appeal “that has a reasonable prospect of success.” The following is stated at para. 15:
15 The defendants have not convinced me that they has [sic] a serious issue to be addressed on the appeal. In my view, in the context of an appeal, a "serious issue" is a ground of appeal that has a reasonable prospect of success. Certainly, the defendants need not convince me they will win the appeal, or even that they will probably win the appeal. They must, however, satisfy me that they have some reasonable prospect of success.
[29] In Buccilli v. Pillitteri, 2013 CarswellOnt 16731 (Ont. C.A.) [In Chambers], Gillese J.A. adopted Fiala Estate, supra, in finding that an appellant need only show that an appeal has a reasonable prospect of success to satisfy the criterion that the appeal raises a serious issue. The following is stated at paras. 34 and 35:
The Test for a Stay
34 The test for a stay of an order pending appeal, under Rule 63.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is well-established: see e.g. Fiala Estate v. Hamilton, 2008 ONCA 784, 173 A.C.W.S. (3d) 33 (Ont. C.A.), at para. 14. It mirrors the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.) that is employed in determining whether to grant an interlocutory injunction. Thus, the moving party must establish that:
• the appeal raises a serious issue;
• it will suffer irreparable harm if the stay is not granted; and
• the balance of convenience favours a stay.
Does the Appeal Raise a Serious Issue?
35 To answer this question, the appellants need only show that the appeal has a reasonable prospect of success; they need not convince me that they will win the appeal or even probably win the appeal: Fiala Estate, at para. 15.
[30] The question that is raised by the foregoing is as follows: on a motion for a stay, in order to establish whether the appeal raises a serious issue, does the appellant have to establish: (a) that the appeal is not frivolous or vexatious?; or (b) that the appeal has a reasonable prospect of success, without having to convince the court that the appellant will win or even probably win the appeal?
[31] The foregoing has created some inconsistency in how lower courts have dealt with the “serious issue” criterion.
[32] For example, in Gray v. Guerard, 2014 CarswellOnt 2139 (Ont. S.C.J.), at para. 13, the court referred only to the test in Fiala Estate, supra, as to whether the appeal raises a serious issue. No other cases were discussed as to the meaning of serious issue.
[33] In Mudry v. Danisch, 2014 CarswellOnt 9883 (Div. Ct.), para. 168, on a motion to stay pending appeal, the court found that the serious issue test was a low threshold and could be met if the appeal was found to be not “frivolous or vexatious.” In coming to that conclusion, the court relied on the decisions by the Court of Appeal for Ontario in Circuit World Corp. v. Lesperance, and Ontario v. Shehrazad Non Profit Housing Inc.; however, there was no reference to either Fiala Estate or Buccilli.
[34] In RJR-MacDonald Inc., the Supreme Court of Canada, at paras. 44, 49-50, in relation to the “serious issue” ground, stated that the standard now generally accepted in Canadian courts is that a claim (and this would include an appeal) raises a serious issue if it is not frivolous or vexatious.
[35] Accordingly, if there is a difference in the test as discussed by the Court of Appeal for Ontario as to what an appellant must demonstrate to show that an appeal raises a serious issue, then I find that I am bound by the Court of Appeal for Ontario decisions in Circuit World Corp. v. Lesperance and Ontario v. Shehrazad Non Profit Housing Inc. as the “frivolous or vexatious” test adopted in those cases was consistent with the Supreme Court of Canada decision in RJR-MacDonald Inc.
Discussion
[36] Applying Lefebvre, supra, the onus is on the appellant to demonstrate: (1) that her appeal raises a serious issue that the trial judgment is wrong; (2) that the child will suffer irreparable harm if a stay is not granted; and (3) the balance of convenience favours a stay.
[37] Also, as explained in Lefebvre, the child’s best interests are an overriding consideration reflected in the three-part test. I must be satisfied that it is in the child’s best interests to order a stay.
[38] On the first ground, a finding that the appeal raises a serious issue is made out if the low threshold is met that the appeal is not frivolous or vexatious. Given that the trial judge reversed a long-standing status quo, I am prepared to find that the appeal raises a serious issue. However, on the status quo issue, I underscore that the trial judge reviewed the evidence, made findings and came to a conclusion that appears to be supported by the evidence. The fact that an appeal may not be frivolous or vexatious is not demonstrative of any prediction that the appeal will succeed.
[39] I am not satisfied that the appellant has met her onus regarding the second and third grounds.
[40] Context too is relevant. The motion for a stay was first returnable on September 5, 2017, close to three months after the trial judgment.
[41] By the time that the motion was heard, it was over six months after the trial judgment. The child had resided primarily with the respondent since early September 2017 when school started; the respondent deposed that the child likes his school and there is no cogent evidence disputing that.
[42] I find there is no evidence of irreparable harm to the child if the stay is denied. Rather, the child likely would be confused if subjected to another residence change pending appeal.
[43] There is a Divisional Court sitting scheduled for London for April 2018. For reasons that are not clear, the appeal had not been perfected when the motion was argued, despite the fact that according to the transcript the ordering party was notified September 1, 2017. The appellant needs to perfect the appeal promptly, if she has not done so already.
[44] There is no evidence to satisfy me that the balance of convenience favours a stay; nor am I satisfied that it is in the child’s best interests to order a stay. I find that what is in the child’s best interests is that the child continue to attend school and reside primarily with the respondent pending the hearing of the appeal.
Order
[45] For the foregoing reasons, I make the following order:
The appellant’s motion is dismissed.
If the parties are unable to agree on the costs of the motion, then the parties may make written submissions on costs to be forwarded to the trial coordinator; the parties shall serve and file their written submissions with the trial coordinator as follows: by the respondent within two weeks, by the appellant within two weeks thereafter, and by the respondent, a reply, if any, within one week thereafter. The written costs submissions shall not exceed two typed pages, double spaced, plus copies of any offers, time dockets and relevant authorities.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: January 17, 2018
[^1]: This matter was raised in my earlier decision, Lapier v. Roebuck, 2016 ONSC 7960 (Div. Ct.), at paras. 25-27.