Court File and Parties
CITATION: Govan v. Dobson, 2018 ONSC 5033 COURT FILE NO.: CV-18-77416 DATE: 2018/08/27
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: Hilary Anne Govan, Applicant AND Michael Dobson, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Gordon C. Campbell, for the Applicant Eric Letts, for the Respondent
HEARD: August 21, 2018
Endorsement
J. MACKINNON J.
[1] The applicant is the moving party seeking a stay of two interlocutory orders made by Justice Audet on June 14 and July 19, 2018. The applicant seeks the stay pending the outcome of her motions for Leave to Appeal to Divisional Court, and if leave is granted, pending the appeal. The Leave Motion in relation to the June order included the contempt finding and penalty imposed by Audet J. These are final orders for which leave is not required and the appeal lies to the Court of Appeal. Applicant’s counsel acknowledged this during oral argument and undertook to abandon the appeal from that finding and penalty to avoid jurisdictional problems in the Divisional Court. I have proceeded on that basis.
The Orders
[2] On June 14, 2018, Audet J. found the applicant in contempt of court for having relocated the child’s residence from Gatineau, Quebec to Sainte-Anne-des-Lac, Quebec in breach of an order dated May 24, 2018, and for interfering with the respondent’s access on June 3, 2018 in breach of orders dated March 6, 2018 and May 24, 2018. Audet J. imposed a penalty of $3,000 for the contempt.
[3] She also awarded the respondent interim sole custody and primary residence of their child pending trial. She provided the applicant the opportunity to return before her in two weeks to determine what access she should have, pending trial. Before seeking access, the applicant was required to deposit her passport with the court and to obtain accommodation in Ontario in the Ottawa region, for her and the child to reside temporarily during access periods. In the meantime, telephone access was ordered.
[4] On July 19, 2018, the applicant did return and an access order was made for access each week of two or three days until school started, and then for two out of three full weekends plus an overnight following the child’s weekend with her father. Audet J. also made some procedural orders with respect to the trial which is scheduled to commence on September 24, 2018.[^1] No stay or leave to appeal is taken from that aspect of the July order.
Factual Context
[5] The parties are the parents of five year old Hailey. They separated when she was about one year old. Court proceedings commenced shortly after the separation in 2015. Hailey resided primarily with the applicant mother until the June order.
[6] Initially, both parties resided in Ontario. The applicant moved just across the Ottawa River to Gatineau, Quebec with the child in July 2016. This move was not unlawful because the proximity of Gatineau to Ottawa was within the permitted range. The move was made without prior notice to the respondent. The Ontario litigation continued. In March 2018, the applicant took the position that Ontario no longer had jurisdiction. Justice Audet ruled that Ontario maintained jurisdiction.
[7] Justice Audet seized herself of this case in January 2018. The first motion she heard was on March 6, 2018. In her decision Audet J. found that:
- The mother’s allegations that the father had sexually abused the child were completely without merit;
- The mother had consistently frustrated the father’s access with the child;
- She continued to do so relying on allegations of escalation in the child’s behavior following unsupervised visits, which were not credible; and
- The mother’s unilateral denial of access following January 12, 2018, and her refusal to agree to reasonable supervised access since then were also unreasonable and part of her long-standing pattern to frustrate and deny access.
[8] Audet J. then ordered specific and detailed unsupervised access between the father and child.
[9] On May 24, 2018, Audet J. heard a contempt motion brought by the father. She made three findings of contempt against the mother, set a penalty of $1,000 and provided her an opportunity to purge her contempt. Audet J. also warned the mother that she may be incarcerated for any further findings of contempt.
[10] During the May motion the father presented some evidence that the mother might move to the United States with the child. This included statements the child had made to him and the fact that the applicant’s spouse is employed in the U.S.A. The mother’s denial was vehement. Audet J. made an order preventing her from changing the child’s current residence without first providing the father 90 days’ notice of her intention. Given that the applicant also advised the court she had commenced a proceeding in Quebec, the Justice ordered the applicant to file endorsements and orders made on March 6 and May 24, 2018 in the Quebec court file.
[11] On June 7, 2018, the respondent issued another motion alleging the applicant was in contempt of the May 24 order by moving the child’s residence without proper notice and by frustrating access on June 3. He also alleged that the applicant had misled the court on May 24 in two particulars: by stating she had no intention to move and by stating she had already commenced a proceeding in Quebec claiming the same relief the Ontario court had ordered on March 6, 2018.
[12] The respondent did not seek any change in the child’s residence in his Notice of Motion other than during any period of incarceration that might be imposed upon the mother. In his oral submissions when the motion was heard on June 14 he did ask for sole custody and residence on an interim basis. The mother made a brief reply, opposing his request. Both parties had also given oral testimony to update the judge and each cross-examined the other.
[13] This was not the first time the respondent had raised the issue of a transfer of custody and residence to himself. In the spring of 2017 he moved for this relief on an interim basis and gave notice he would be amending his pleadings to seek the same on a final basis.
[14] Justice Audet made these finding of fact in her detailed reasons for the June order:
- The mother misrepresented to the court that she had no intention to move. Her explanation that she said this only in regards to a move to the United States, not to anywhere else, was disingenuous.
- The mother relocated the child to Sainte-Anne-des-Lacs, Quebec, a distance of about 180 km from Gatineau without providing the 90 days’ notice required by the May 24 order. In fact she moved on or about the same day as she gave the father notice. In so doing, she was in contempt of court.
- The mother had also misrepresented to the court that she had commenced a Quebec action. She did not do so until June 1, 2018. Nor was the relief sought as she had told the Ontario court.
- The mother was in contempt of the court order by interfering with the father’s access on June 3, 2018.
- The mother complained to the Quebec police in her new location that the father was stalking and harassing her. The Quebec police told the father that if he did not present himself voluntarily they would issue an all Canada warrant for his arrest.
- The text messages the mother relied upon in support of this allegation did not appear on the father’s cell phone when it was shown to Audet J. Although the mother had shown them to the police and sent them to the court on June 12, she was unable to find them on her phone in court on June 14. Audet J. did not accept her explanation for why this was.
[15] In addition to finding the mother in contempt and imposing a further penalty, Audet J. directed herself to section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, which provides that custody and access issues are to be decided according to the best interests of the child. She considered the child’s best interests and transferred interim sole custody and residential care to the father.
[16] Although she provided more extensive reasons, her primary reason for making this order is contained in these words: “I am simply of the view that no other order will ensure that Hailey’s relationship with her father and her best interests will be protected pending a full-blown trial in this matter.”
[17] The June order went into effect immediately because Audet J. had already required the mother to make arrangements to have the child brought to the court house and she had detained the mother in the court house until that happened and her order had been given.
[18] On June 14, Audet J. also made an order requesting the Office of the Children’s Lawyer to re-involve itself in the case. Audet J. was familiar with the November 2017 OCL report. She devoted three full paragraphs to it in her Endorsement of March 6, 2018. She was aware of its conclusion that both parents had good parenting skills, and its recommendations that the mother retain sole custody and that the father’s access should be increased.
[19] The respondent’s record on the Stay Motion shows that the applicant did not complete the mandatory OCL Intake Form subsequent to the June order, and for that reason the OCL declined to re-open its file.
[20] The respondent’s Record on the Stay Motion also established that the Quebec police closed their file with no charges laid. The Lanark Child Protection Agency had reviewed, investigated and cleared the father of any child protection concerns in relation to a complaint it received on or about June 18, 2018.
[21] Additionally, the respondent deposed that he had been acquitted after trial of charges of criminal harassment of the applicant which had been referred to in the November OCL report.
[22] On July 19, 2018, Audet J. heard testimony from the parents so that she could determine the mother’s access pending trial. She did so because neither parent had affidavit material. She delivered detailed reasons outlining the access arrangements pending trial. She also referred to the father’s ability to register the child in school for September. In particular, Audet J. stated:
“It is important to note that the trial in this matter is proceeding at the end of September, and the parenting regime between the parties could change again at that time, resulting in more changes in Hailey’s young life. I agree with the father that stability at this stage should be a priority for Hailey. I have already advised that I have no intention to change my June 14 order granting the father interim sole custody of Hailey pending trial. I found previously that this was the only way to ensure that Hailey’s best interests would be met until they can be fully assessed in the context of a trial. My view on this has not changed.”
The Test to Stay an Interlocutory Order
[23] RJR-Macdonald Inc. v. Canada (A.G.), 1994 117 (SCC), [1994] 1 S.C.R. 311 sets out the three part test to obtain a stay, namely that there is a serious issue to be tried, irreparable harm if a stay is refused, and that the balance of convenience favours granting a stay.
[24] This test has been modified in child parenting cases where the best interests of a child are engaged. For example, the Ontario Court of Appeal in Lefebvre v. Lefebvre, 2002 17966 (ON CA), [2002] O.J. No. 4885 held in respect of the test to stay a custody order pending appeal:
6 Section 74 of the Children's Law Reform Act, R.S.O. 1990 c. C.12 expressly provides that custody and access orders remain in effect pending an appeal to this court unless this court orders otherwise. Therefore, on this motion, Mr. Lefebvre bears the onus of showing why a stay is warranted. The usual three-part test for a stay applies. Mr. Lefebvre must show that (1) his appeal raises a serious question that the trial judgment is wrong; (2) [the child] will suffer irreparable harm if a stay is not granted; and (3) the balance of convenience favours a stay. The overriding consideration - reflected in this three-part test - is the best interests of the child. I must be satisfied that it is in [the child’s] best interests to order a stay. I will deal separately with the two orders Mr. Lefebvre seeks to stay.
[25] More recently the Court of Appeal addressed the test in Berry v. Berry, [2010] O.J. No. 6248 at paragraphs 5 and 6:
5 Finally, for the same reasons, I am satisfied that the balance of convenience favours staying the trial judge's order. The balance of convenience in this type of case centres primarily on the best interests of the child. The appellant and the respondent are by all accounts both excellent parents and devoted to this young child, a child that has already had serious health challenges during his young life. The result of the trial judge's order is to effectively rupture the child's relationship with his father, which would have to be re-established every two weeks. On the record before me, this is not in his best interests, at least at this stage of his life.
6 I appreciate that in custody and access matters, the decision of the trial judge is owed substantial deference. That must particularly be the case here where the very experienced judge has heard many days of oral testimony and lengthy submissions. However, my decision does not turn on whether the trial judge's decision may ultimately be upheld, but whether the child's best interests require a stay for the, hopefully, short time necessary to afford the appellant the opportunity to have that decision reviewed.
[26] See also Mudry v. Danisch, 2014 ONSC 4335 (Div. Crt) where the three part test was applied with the best interests of the child in mind.
Serious Question
[27] This part of the test sets a low threshold; higher than frivolous or vexatious, lower than probable success on appeal, if leave is granted.
[28] The key submission for the applicant relates to procedural fairness where relief is ordered that was not sought by either party. The applicant says she did not have fair notice, or an opportunity to prepare and to respond to what turned out to be a change in custody and primary residence on an interim basis. As noted above the respondent’s Notice of Motion only sought residential custody during any period of incarceration that might be imposed on the applicant in consequences to a contempt finding.
[29] In his oral submissions, the respondent asked for interim custody and a change in the child’s residence. The applicant did reply to this briefly in her own oral submissions. Both submissions were extemporaneous without advance notice or preparation. The judge did not advise the applicant that she was considering changing custody pending trial or offer her the opportunity to address the judge’s concerns on this point.
[30] It is the exceptional case where a judge will order relief not requested by a parent in his or her pleadings. In exceptional circumstances a judge may conclude that so doing is required to protect a child and that immediate action is required. In such a case, the judge should at a minimum tell the parties the order she is considering making and why, and then provide them the opportunity to address the judge’s concerns whether by adducing additional evidence and/or making additional oral submissions.
[31] Audet J. clearly was of the view that she was faced with exceptional, urgent circumstances on June 14 especially having regard to the applicant’s contempt in moving the child to Sainte-Anne-des-Lacs contrary to the May 24 order. The June 14 ruling is not a precedent for changing a longstanding status quo on an interlocutory basis on the eve of trial. Rather, it is an exceptional order made in exceptional circumstances including that the applicant herself had just changed an important aspect of the status quo, namely the child’s place of residence, in contravention of a court order made three weeks earlier.
[32] That said, I am satisfied that the applicant has met this part of the test due to the lack of formal notice that a change in interim custody and residence would be sought, combined with the judge’s omission to direct the applicant to what the judge was considering doing so that the applicant would know the jeopardy she was facing and be able to respond more fully to the judge’s concerns in this regard.
Irreparable Harm
[33] The applicant submits that the test of irreparable harm is met given that the result of the interlocutory order is disruptive: it changes custodial decision making and primary residence on a short term basis in the face of a lengthy status quo which favoured the applicant. The applicant relies on the well-known practice of favouring the status quo on a temporary basis where children are concerned.
[34] The applicant further submits the access she has under the July order is insufficient to the relationship between her and her daughter. She submits the reduction in time with her mother will cause irreparable harm to the child’s best interests. Whereas the child has resided with her mother most of her life, the access provided of about ten days per month during the summer, and about seven days per month after school starts, is said to be too dramatic a change to have been made on an interlocutory basis.
[35] The applicant stresses the importance to Hailey to start school in Sainte-Anne-des-Lacs where she will enter in the first year program with her age cohort. In Ontario, Hailey would start in Senior Kindergarten, not having attending Junior Kindergarten, thus being a year behind her cohort, according to her mother. Further, the applicant has enrolled Hailey in a French language public school. Her submission is that as the parent with a long status quo as custodial decision maker, her choice should take precedence over the father’s proposed enrollment in a French immersion separate school.
[36] The difficulty with the applicant’s submissions rooted in the status quo as it was prior to June 14 is that by her disobedience of the May 24 order, she herself willfully changed the child’s place of residence without affording the respondent the notice period of 90 days, which would have enabled him to ask the court to determine whether the move could or could not be made before trial.
[37] The policy of the law is to discourage not to reward self-help remedies. Now, the applicant submits the child should reside with her 180 km away from the actual status quo residence. If the applicant were successful in having the child returned to her in Sainte-Anne-des-Lacs she would have succeeded in preventing the respondent from opposing the move before trial. The status quo with respect to the father’s access would also have been changed in a significant way by adding a two hour drive each way for each visit between the respondent and the child.
[38] The applicant’s own conduct has prevented a full restoration of the status quo.
[39] In considering whether granting or refusing a stay will cause harm to a child’s relationships, the issue must be addressed with reference to both parents.
[40] The applicant relies on the OCL report which recommends she continue to have sole custody, and on the findings the motion judge made, to the effect that the mother has the ability and willingness to meet the child’s day to day needs, and has done this well since separation. The OCL report also concluded that the father had good parenting skills and that Hailey was equally happy and comfortable with each parent.
[41] Contrary to the applicant’s submission I cannot ignore the fact that Hailey has now resided in her father’s home since June 14 and is doing well. Alves v. Londran, 2016 ONSC 6462 (SCJ), followed the Divisional Court decision in Lemming v. Lemming, 2016 ONSC 1835, and held at paragraphs 16-20:
16 Granting a stay of Justice Spence's decision would result in the reinstatement of the status quo before the trial, i.e. placing Miguel under the primary care and residence of the appellant. This would be the second "uprooting" in a matter of months. In my view, such an order would only be appropriate if I was satisfied that (a) there was a significant chance that the appeal would be successful, and (b) there was clear evidence that Miguel was suffering or not thriving as a result of the change in the previous status quo.
17 While I have found the presence of a serious issue to be tried, I am not convinced that there is a significant chance the appeal will be successful. I am obviously not in a position to carry out a detailed assessment of the merits of the appellant's arguments, but from what I have reviewed in the record before me, Justice Spence appears to have exercised his discretion upon the correct legal principles. Justice Spence found the appellant to be dismissive of the respondent and "wanting to cut her out of Miguel's life". There was evidence in the record before him to make such a finding.
18 More importantly, there is a complete lack of evidence filed on this motion to support a finding that Miguel is suffering in any way as a result of Justice Spence's decision. …
19 … I have no evidence before me to conclude that Justice Spence's decision is having any adverse effects upon Miguel. In the absence of any such evidence, in my view it is not in Miguel's best interest to reinstate the status quo, especially when the appeal may very well end up being dismissed resulting in Miguel being potentially uprooted again.
20 I find that the refusal of the stay will not cause Miguel irreparable harm, while the granting of the stay may very well do so.
[42] I adopt the reasoning in Alves as applicable here.
[43] I conclude that the applicant has not established that granting a stay is required by the child’s best interests. The contact between the applicant and child is significant. The child is doing well under the current arrangements, and the potential of the late entry by Hailey into school in Sainte-Anne-des-Lacs does not establish irreparable harm.
Balance of Convenience
[44] In my view, the balance of convenience favours dismissing the motion to stay. The trial is scheduled to start on September 24, 2018. The child is better served by leaving the residential arrangements as they are for that short period of time, rather than requiring her to move now to a quite new environment in Sainte-Anne-des-Lacs and with the potential for another move after the trial outcome is known.
[45] The trial will commence before the leave to appeal motions are likely to have been decided, let alone the appeal itself if leave is granted. Applicant’s Counsel acknowledged as much in stating that he would proceed to trial and abandon the potential appeal if the trial did proceed as scheduled.
Conclusion
[46] The applicant has not met the three part test required to stay an interlocutory order pending a leave to appeal motion, and if leave is granted, pending the appeal. Accordingly, the motions are dismissed.
Costs
Counsel agreed that $5,000 in costs should be awarded to the successful party. The applicant shall pay that amount in costs to the respondent.
J. Mackinnon J.
Date: August 27, 2018
CITATION: Govan v. Dobson, 2018 ONSC 5033 COURT FILE NO.: CV-18-77416 DATE: 2018/08/27
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
RE: Hilary Anne Govan, Applicant AND Michael Dobson, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Gordon C. Campbell, for the Applicant Eric Letts, for the Respondent
HEARD: August 21, 2018
ENDORSEMENT
J. Mackinnon J.
Released: August 27, 2018
[^1]: The trial co-ordinator has confirmed this start date.