Zhang v. Guo, 2019 ONSC 5381
DIVISIONAL COURT FILE NO.: DC-19-2497
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Ye Zhang, Moving Party (Applicant)
AND
Zhiwei Guo, Responding Party (Respondent)
BEFORE: Justice R. Ryan Bell
COUNSEL: Beverley A. Johnston for the Moving Party
Evan Corey for the Responding Party
HEARD: September 6, 2019
ENDORSEMENT
Overview
1The parties are the parents of Catherine, now four years old. The applicant mother seeks a stay of the May 22, 2019 interim order of Maranger J. (the “May order”) pending the hearing of her motion for leave to appeal the May order and, if leave is granted, pending the hearing of her appeal.
2The motion judge ordered joint custody of Catherine and granted the respondent father access to Catherine pursuant to a 28 week, gradually increasing schedule. For the first four weeks of the schedule, access was to be “supervised by Ms. Nan Wang and [was to] take place in the community (public) such as a restaurant, library, playground, [or] movie theater. Thereafter [access would] be at the father’s home and unsupervised.” Beginning in week three, the access schedule ordered by the motion judge included a short Facetime or Skype call once per week.
3Since the May order, no meaningful access has taken place.
Litigation History
4The parties were married on June 26, 2013. Catherine was born on May 13, 2015.
5The parties separated on March 31, 2016. On that date, the mother contacted Ottawa Police Services with allegations of abuse and violence against the father. The police did not lay criminal charges at that time; however, the Children’s Aid Society of Ottawa (“CAS”) was contacted to investigate the matter.
6CAS closed their file on May 31, 2016. CAS was unable to verify the mother’s allegation that the child could be exposed to partner violence. In her August 21, 2019 affidavit filed on this motion, the mother states she downplayed the violence because she was scared that Catherine would be taken away.
7As found by the motion judge, from March 31, 2016 to July 31, 2017, the father had regular access to his daughter and had some involvement in her upbringing. As noted by the motion judge, the mother disputes the level and quality of the father’s access and involvement.
8On July 31, 2017, all access by the father to Catherine was terminated by the mother.
9On August 1, 2017, the mother commenced her application.
10At the case conference in November 2017, Engelking J. ordered that the file be delivered to CAS to conduct an investigation if one was warranted. CAS did not open an investigation because the new allegations made by the mother predated those that had been made when CAS initially conducted their investigation in 2016.
11Since July 31, 2017, the father, through counsel, attempted to initiate some access to Catherine. He was unsuccessful. By the time the father’s motion for interim custody and access was heard on May 16, 2019, the father had not seen Catherine for 22 months.
12Both parties have filed affidavits on this motion regarding what has transpired since the May order. Access is not occurring. On May 25, 2019, access did not occur because the maternal grandmother was sick and the mother was at the hospital with her. Over the next few weeks, the parties attempted access in the lobby of the War Museum. No meaningful access took place. The mother maintains that Catherine refuses to go with her father because “he is a stranger to her.” The father asserts that the mother is undermining the access ordered by the motion judge. No access took place on July 27, 2019, apparently because the mother’s lawyer was out of the office and the parties do not communicate directly.
13No access visit occurred on August 3, 2019 because, according to the mother, “the Respondent was under investigation by the Ottawa Police.” The father has made no attempts to exercise access since August 3.
14Counsel confirmed at the hearing of this motion that no telephone access has occurred, notwithstanding the May order.
15On August 5, 2019, the father was charges with six counts of assault, two counts of assault causing bodily harm, assault with a weapon and mischief to property. Counsel confirmed at the hearing of this motion that the charges arise from the same allegations that were before the motion judge. The allegations predate the mother’s application. The mother’s complaint to the police was made after the release of the May order.
16The father’s conditions of release include an undertaking that he is to have no contact and no communication with the mother. The undertaking also provides that access to Catherine is to be at the discretion of the CAS or “by a family court order that post dates [sic] this offence.” This would include the May order.
17On August 1, 2019, I granted the mother an extension of time to serve and file her notice of motion for leave to appeal the May order. The mother’s motion for leave to appeal has now been filed.
Applicable Law
18Rule 62.02(4) of the Rules of Civil Procedure governs the grounds for granting leave to appeal an interlocutory order. It provides:
(4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the panel 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 the panel’s opinion, leave to appeal should be granted.
19It is well-settled that leave to appeal under Rule 62.02(4) should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted, each of which involves a two-part test (Laurence v. Bridge, 2016 ONSC 7324, at para. 17). The mother relies upon both branches of Rule 62.02(4).
20The test for staying a custody or access order pending an appeal is well-established. The moving party must demonstrate that: (i) the appeal raises a serious question that the decision at first instance is wrong; (ii) irreparable harm to the child would result if the stay is not granted; and (iii) the balance of convenience favours a stay. The overriding consideration is the best interests of the child. I must be satisfied that it is in Catherine’s best interests to order a stay (Lefebvre v. Lefebvre, at para. 6).
21In custody and access cases, the concepts of irreparable harm and the balance of convenience are inextricably linked as the paramount interest is the best interests of the child. I agree with Wilton-Siegel J. that the focus of these concepts is well expressed in A.(D.) v. K.(H.), [2014] A.J. No. 1204 (C.A.), at para. 29:
The words “irreparable” and “convenience” are awkward in this context if taken in their more common connotations. As to irreparable, the moving finger writes and moves on in human existence, and in the life of a young child it cannot be called back. What is really conveyed by the concept of ‘irreparable’ harm in this context is that the harm is real and significant and that it is more than the transitory disturbances of growing up. So there is emphasis on the quality of the harm and its potential for lingering effect. Similarly, as to convenience, the matter is not really a balance between two disputants. The concept is a child interest dominated perspective and looks to where the disadvantages or harms may rest more lightly. In family break-down situations, it may well be that none of the available alternatives is desirable in its own right, and therefore the ultimate focus is on choosing the least undesirable, with emphasis on the children’s situation (cited by Wilton-Siegel J. in Closner v. Closner, 2019 ONSC 703 (Div. Ct.), at para. 4).
Analysis and Conclusions
22The mother submits that the first part of the test – whether there is a serious issue for the appeal – has been met in this case. She argues that the May order “seriously disrupted the foundation principle of the status quo in family law,” contrary to Catherine’s best interests. She says that the report of Dr. Jackson, which was before the motion judge, was “without merit and improperly filed” and ought not to have been relied upon by the motion judge. The mother also takes the position that the motion judge erred in ordering that the access be supervised by Ms. Wang, “without regard for her qualifications.”
23Before turning to the proposed grounds of appeal, I make the following observations.
24First, the decision of the motion judge was a discretionary decision. The decision is entitled to deference. To succeed in a motion for leave to appeal pursuant to Rule 62.02(4)(a), the moving party must satisfy the court that there is a conflicting decision where there is a difference in the principle chosen as a guide to the exercise of a judge’s discretion (Laurence, at para. 21, citing Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.), at para. 7). The moving party must demonstrate that there is a difference in the principles chosen by the motion judge as a guide to the exercise of the judge’s discretion, not simply a different set of facts leading to a different conclusion (Laurence, at para. 22, citing Nikore v. Proper, 2010 ONSC 2307, at para. 33).
25Second, to succeed in a motion for leave to appeal pursuant to Rule 62.02(4)(b), the moving party must not only demonstrate that there is good reason to doubt the correctness of the order, but also that the proposed appeal involves matters of such importance that leave to appeal should be granted. The impugned order must transcend the interests of the parties and raise a question of public importance, or be relevant to the development of the law or the administration of justice in general (Vandenberg v. Desjardine, 2016 ONSC 1968, at para. 12).
26Third, the mother asserts that the May order was “inconsistent with [the motion judge’s] own findings that there were serious allegations of violence that needed further investigation.” In my view, this is not a fair reading of the motion judge’s reasons. The motion judge recognized that the paramount consideration of the court is the best interests of the child. He found that if the current state of affairs (no access) was allowed to continue there would be “a risk that the relationship between the father and child [would] be forever extinguished” and that “this is certainly not in the child’s best interests.” At the same time, in the exercise of his discretion and in furtherance of his obligation to address Catherine’s best interests, the motion judge crafted an access schedule that took into account the amount of time Catherine has been estranged from her father, Catherine’s age, and the mother’s allegations. The “added steps” (gradual access, for short periods of time, supervised by a third party, and in the community), were expressly ordered by the motion judge “out of an abundance of caution given the mother’s allegations.”
27Fourth, in my view, the mother overstates the reliance placed by the motion judge on Dr. Jackson’s report. In his reasons, the motion judge set out the steps taken by the father to “placate the concerns a court could have” concerning Catherine’s safety if she were in his care. Those steps included the completion of three parenting and counselling courses, as well as obtaining Dr. Jackson’s assessment. The mother asserts that the motion judge relied on Dr. Jackson’s report to “persuade him to accept” that the father had no propensity for violence or abuse; however, I note, again, that in fashioning the access schedule, the motion judge expressly acknowledged the mother’s allegations of violence.
28Fifth, as part of the May order, the motion judge ordered that the Office of the Children’s Lawyer (“OCL”) be appointed with a view to conducting an evaluation/assessment of the parents. The motion judge requested the involvement of the OCL on a priority basis because “this is a high conflict matter where further evidence is required given the allegations made by the mother and the denial of access to the child.” The OCL has discontinued its involvement due to an inability to observe the father with the child.
29I turn to address briefly the three proposed grounds of appeal. A “serious issue” in the context of an appeal is a “ground of appeal that has a reasonable prospect of success” (Closner, at para. 17, citing Filia Estate v. Hamilton, 2008 ONCA 784, at para. 15).
30The first proposed ground of appeal is that motion judge “totally disregarded” the status quo on an interim basis. In my view, this interpretation ignores the reasons of the motion judge. As at the motion in May 2019, the father had not had access with his daughter for 22 months. It was this “state of affairs” – the de facto status quo – that formed the foundation for the motion judge’s exercise of his discretion to craft an order to reintroduce Catherine to her father. On the evidence before him, the motion judge found that it would not be in Catherine’s best interests to allow the status quo to continue because to do so would risk extinguishing, forever, the relationship between Catherine and her father. Maintenance of the status quo on an interim motion is not “an immutable principle” and changes to the status quo may be justified in the child’s best interests (Bell v. Ferguson, 2015 ONSC 7267, at para. 25).
31The second proposed ground of appeal concerns the reliance placed by the motion judge on Dr. Jackson’s report. The mother’s position is that the motion judge erred in admitting Dr. Jackson’s report and that it should have been given little weight as it was “clearly biased” in the father’s favour. The mother relies on Sordi v. Sordi, 2011 ONCA 665 in which the Court of Appeal for Ontario upheld the trial judge’s decision to exclude the evidence of a psychologist on the basis that the doctor had no background in child psychology, had never observed the children with the respondent, and was admittedly biased in favour of the respondent (Sordi, at paras. 13 and 15). I note that these arguments were not advanced by the mother’s previous counsel before the motion judge. In any event, there is no indication that the report was determinative in the motion judge’s exercise of his discretion.
32The third proposed ground of appeal is that the motion judge erred in appointing Ms. Wang to supervise the father’s access with Catherine, without any regard to her qualifications or her relationship with the child. The mother’s position that the supervisor needs special qualifications is belied by her position before the motion judge: that only supervised access should be ordered, either through a supervised access centre or by the maternal grandparents. In the exercise of his discretion, the motion judge ordered that for the first four weeks of the schedule, access would be in the community, supervised by Ms. Wang. I was not referred to any conflicting decisions and I do not see how this issue transcends the interests of the parties so as to satisfy the test for obtaining leave to appeal under either branch of Rule 62.02(4).
33In summary, taking into account the discretionary nature of the motion judge’s decision, the reasons of the motion judge, the case law, and the test to obtain leave under both branches of Rule 62.02(4), it seems to me that the prospect that leave to appeal will be granted on any of the proposed grounds is quite low.
34However, it is primarily on the basis of parts two and three of the test that I determine the motion.
35For the purposes of the test for a stay, irreparable harm is focused on harm to Catherine. The mother raises two types of irreparable harm to Catherine from implementation of the May order.
36First, the mother says that the father has been violent and abusive to her, as well as to Catherine, and that placing Catherine in the father’s care for even short periods of time puts Catherine at risk of harm. In my view, the mother overreaches. The mother has made allegations of violence and abuse against the father. The motion judge expressly referred to the allegations as “extreme” and “concerning.” He also observed that the father denies the allegations “categorically.”
37While those same allegations have now resulted in criminal charges against the father, the existence of criminal charges respecting allegations of violence is not determinative of issues of temporary custody and access. The focus of the analysis remains the best interests of the child, and this involves a careful consideration and weighing of the evidence and the relevant factors (Batsinda v. Batsinda, 2013 ONSC 7869, at para. 29). The father’s undertaking provides that access to Catherine is to be at the discretion of the CAS or by a family court order, such as the May order, that postdates the alleged offences. No additional conditions were placed on the father’s access to Catherine. I infer from this fact that the officer in charge did not find the mother’s allegations against the father to raise a concern about Catherine in his presence.
38Second, the mother says that Catherine is suffering emotional harm as detailed in her affidavit describing what transpired during the failed attempts at access following the May order. The alleged harm is not supported by any independent evidence. The mother describes Catherine being anxious and upset during these attempts and states that Catherine refuses to go to her father because he is a stranger to her. I agree with the father that the difficulty in the transition was anticipated by the motion judge who attempted to mitigate it with a gradually increasing schedule. He also ordered telephone access which has not been taking place.
39The mother has an obligation to actively encourage access. The residential parent’s responsibility goes beyond simply accommodating access, making the child available for access, and encouraging the child to comply. The residential parent must require that access occur and actively facilitate it (Jackson v. Jackson, 2016 ONSC 3466, at para. 63). The mother cannot abdicate her role as a parent. The mother’s subjective belief does not relieve her from complying with her legal obligation to actively facilitate access. Her legal obligation includes compliance with the telephone access ordered by the motion judge.
40I find that the mother has failed to demonstrate a risk of irreparable harm to Catherine that would result from a denial of the requested stay of the May order.
41As to the balance of convenience, the mother submits that the balance of convenience favours the granting of a stay because the risk to Catherine is too great, and Catherine is doing poorly in the access as ordered. Given my conclusion that these concerns do not represent real risks of harm to Catherine, they do not factor into the consideration of the balance of convenience. On the other hand, to grant the stay would result in the “current state of affairs” – no access – continuing and as found by the motion judge, risk forever extinguishing the relationship between the father and his child. I agree with the father that granting a stay would continue the mother’s denial of access and realize the very harm to Catherine that the motion judge sought to avoid.
42I find the balance of convenience favours a denial of the requested stay of the May order.
43Although the mother has not met the test for a stay, both parties agree that if access is to resume, a transitional period would be in Catherine’s best interests, with access resuming from week one of the May order. The mother proposes that access occur either at the supervised access centre offered by Family Services Ottawa, or that her parents supervise the access. The father’s position is that Tara Cummings act as supervisor. The mother objects to Ms. Cummings and says that she has not had an opportunity to scrutinize Ms. Cummings’ qualifications.
44Access at the supervised access centre, with an eight month delay and access only available every other week would, in my view, further risk the harm to Catherine that the motion judge was seeking to avoid. It has now been more than two years since the father has had access. The supervised access contemplated by the motion judge must begin in the immediate future, not eight or more months from now.
45It is also of utmost importance and in the child’s best interests that meaningful access occur when the access resumes. These early access visits are critical to reintroduce the father to Catherine. Meaningful supervised access visits will also result in the OCL resuming its involvement in this matter. In my view, meaningful access is more likely to occur if the individual supervising the access visits is known to Catherine. For these reasons, I find that it would be in Catherine’s best interests for her maternal grandparents to supervise the access visits in weeks one to four of the access schedule.
Disposition
46The mother has not met the test for a stay pending her leave to appeal motion being determined. However, it is in the child’s best interests that the supervised access ordered by the motion judge in weeks one to four be supervised by the maternal grandparents. The father’s access to Catherine will commence on Saturday, September 21, 2019. With the resumption of access to the father, both parties are to reapply to the OCL.
47The motion judge ordered that access in weeks one to four take place in the community. The parties are encouraged to agree upon a public location other than the lobby of the War Museum for these access visits. Telephone access shall take place in accordance with the schedule ordered by the motion judge.
48It is in Catherine’s best interest that the progress of the access be monitored. Accordingly, this matter shall be subject to case management as assigned by the Local Administrative Judge – Family.
49In the event the parties are unable to agree on costs of the motion, they may make written submissions limited to a maximum of three pages. The father shall deliver his costs submissions by September 25, 2019. The mother shall deliver her responding costs submissions by October 2, 2019. There shall be no reply submissions. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs between themselves.
Madam Justice R. Ryan Bell
Date: September 18, 2019
CITATION: Zhang v. Guo, 2019 ONSC 5381
DIVISIONAL COURT FILE NO.: DC-19-2497
DATE: 2019/09/18
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Ye Zhang, Moving Party (Applicant)
AND
Zhiwei Guo, Responding Party (Respondent)
BEFORE: Justice R. Ryan Bell
COUNSEL: Beverley A. Johnston for the Moving Party
Evan Corey for the Responding Party
ENDORSEMENT
Ryan Bell J.
Released: September 18, 2019