Court of Appeal for Ontario

Date: 2021-06-08 Docket: M52479 & M52499 (C69393)

Before: Zarnett J.A. (Motions Judge)

Docket: M52479

Between

K.K. Applicant (Appellant/Moving Party)

and

M.M. Respondent (Respondent/Responding Party)

Docket: M52499

And Between

K.K. Respondent (Appellant/Responding Party)

and

M.M. Applicant (Respondent/Moving Party)

Counsel: Gary Joseph and Vivian Li, for the appellant, K.K. Aida Pasha, for the respondent, M.M.

Heard: June 3, 2021 by videoconference

Endorsement

Introduction

[1] The appellant, K.K. (the “father”) moves for a stay pending appeal of the aspects of the trial judge’s April 9, 2021 Final Order (the “Order”) that pertain to parenting the parties’ son, J.K.

[2] The Order directed that J.K.’s primary residence be with the respondent, M.M. (the “mother”), and temporarily suspended, and then restricted, contact between the father and J.K. Pursuant to the Order, J.K. has relocated to the mother’s home and has been residing with her for close to two months. For about six years prior to trial, J.K. had lived with the father.

[3] The mother opposes the stay and moves for security for costs of the appeal.

[4] For the reasons that follow, both motions are dismissed.

The Litigation, The Trial Judge’s Findings, and the Order

[5] The parties separated in November 2012. They then engaged in what the trial judge described as a “protracted high-conflict legal battle” involving their children, V.K. (now 16 years old) and J.K (now 11 years old). From the time the proceedings commenced in 2013, there were approximately 40 court appearances at motions and conferences.

[6] During the litigation, several pre-trial orders about the children’s primary residence were made. In March 2014, sole custody of the children was granted to the father based on an interim finding of parental alienation by the mother. As the trial judge found, “[f]or the next six and a half years, the children resided with the father in…Brampton and had extremely limited parenting time with the mother”, including lengthy periods of virtually no contact or communication.

[7] In September 2020, V.K. left the father’s residence and moved in with the mother in Toronto. At the time of trial, the children were living in separate residences – J.K. with the father and visiting the mother’s house on weekends, and V.K. with the mother.

[8] The matter was tried over 19 days between November 2020 and April 2021. Among the major issues at trial were the allocation of parental decision-making, the question of with whom the children should primarily reside, and the parenting schedule. [1] Important to the disposition of those issues was the question of which parent had tried to alienate the children from the other parent.

[9] The trial evidence canvassed the history of the parties’ behavior and interactions with the children, one another, and various professionals. This provided the trial judge with what she considered to be a more comprehensive evidentiary basis than that on which the interim pre-trial findings had been made.

[10] The trial judge found that the father was not a credible witness. She found the mother to be credible and, for the most part, a reliable historian. She concluded “that the mother did not engage in any alienating conduct, but rather was the target of the father’s vilification and parental alienation”.

[11] The trial judge considered the parenting plans put forward by the parties but directed herself that she was ultimately to determine what orders would be in the children’s best interests. In this regard, she made several findings that underpin the provisions of the Order pertaining to J.K.

[12] The trial judge found that “the physical, emotional and psychological safety, security and well-being of both children would best be fostered if they were living together in their mother’s home”. She found that while V.K. had made a rational decision in her own best interest to move in with her mother, J.K. was not old enough to be able to evaluate what was in his own best interest, that his views had been “profoundly influenced by his father’s relentless vilification of his mother”, and that his expressed desire (including to an Office of the Children’s Lawyer clinician) that he wished to reside with his father was not independently formed.

[13] The trial judge concluded that J.K.’s best interests “necessitate not only that he lives principally with his mother and sister, but also that he has no contact with his father for a temporary period of time”. She came to that determination after noting that J.K. had a strong emotional attachment to his father, in whose primary care J.K. had been for most of his life and recognizing that separating him from his father would have a serious emotional impact on him. But she was “convinced that he needs to be removed from the poisonous atmosphere of his father’s orbit in order to escape the crushing pressure under which he has been placed”. She rejected ordering “supervised parenting time for the father to maintain regular contact with J.K., which would be a less dramatic transition fraught with less emotional upheaval” given “the father’s history of continual manipulation” and “relentless and effective…efforts to undermine J.K.’s relationship with the mother”, which she expected would continue. She “concluded that a temporary period of no contact with the father is what will promote J.K.’s best interests ”.

[14] The Order, made immediately following the conclusion of the trial, addresses parenting of both children. I describe in general terms only those aspects relating to J.K., as they are the subject of both the appeal and the motion for a stay.

[15] The Order directed that the principal residence of J.K. would be with the mother, who would have sole responsibility for making all day-to-day significant decisions, including selection of schools, [2] professionals, and decisions about healthcare, without any requirement to consult with the father. The father is prohibited, until June 19, 2021, from communicating with J.K. or having any parenting time with him outside of sessions with a specified counsellor. From June 20 to July 31, 2021, the father is permitted two weekly video calls of up to 20 minutes in length with J.K. After August 1, the father is also permitted in-person parenting time with J.K. each Sunday from 10 a.m. to 6 p.m. After September 30, 2021, the father may bring a motion before the trial judge to review the parenting schedule and for expansion of his parenting time with J.K. and his responsibility for parental decision-making.

The Motion to Stay

[16] The father’s motion to stay was brought before the detailed reasons of the trial judge were available but was heard shortly after those reasons were released. The father asks that the Order be stayed and that the care and primary residence of J.K. be returned to him, pending disposition of his appeal.

[17] The test for a stay of an order involving the parenting of a child is not in dispute. The overarching consideration in whether to grant a stay pending appeal is whether doing so is in the interests of justice. Three factors are considered: (1) whether, on a preliminary assessment, the appeal raises a serious question, recognizing that this is a “low threshold”; (2) whether the child would suffer irreparable harm if the application were refused; and, (3) the balance of convenience, namely, whether there would be greater harm from the granting or refusal of the remedy pending a decision on the merits: Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), at para. 6; Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), at paras. 8-9.

[18] In my view, it is not in the interests of justice to grant a stay.

[19] On the merits of the appeal, the father focusses on the decision of the trial judge to attach no weight to the opinions or recommendations in reports made by an assessor appointed under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), or to arrange for him to testify. The assessor’s 2014 reports were the support for the finding in March 2014 that the mother had engaged in parental alienation, which led to interim custody orders in the father’s favour; the assessor made subsequent reports through 2018. Under the CLRA, an assessor’s reports are admissible in evidence and the assessor may be required by any of the parties to attend at the hearing as a witness: ss. 30(9), (10).

[20] The trial judge made these rulings relying on a decision made by the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario (“CPSO”) in regulatory proceedings against the assessor and a record of the assessor’s membership status on the CPSO website. She viewed the regulatory decision as discrediting the assessor’s reports because it found that they had been prepared in a manner that fell below professional standards. Aside from the regulatory decision, she would not have relied on the assessor’s reports without his attendance for cross-examination, a request she would have denied because of undertakings the assessor had given to the CPSO as disclosed by the website information.

[21] The father argues that the trial judge erred in overriding the statutory admissibility of the assessor’s reports and the statutory ability of a party to request the assessor’s attendance at trial. The father submits that she erred in treating, as inapplicable, s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. (“RHPA”), which makes records of regulatory proceedings at the CPSO and decisions made in them inadmissible in civil proceedings. He argues that the trial judge erred in concluding that a family law proceeding is not a civil proceeding as contemplated by the RHPA.

[22] This argument passes the “low threshold” that is the merits aspect of the test for a stay. I say that while noting that even if the trial judge erred in these rulings, it is by no means clear that this would affect her overall decision in light of her other findings.

[23] I am not satisfied the irreparable harm and balance of convenience aspects of the test favour a stay.

[24] The father argues that directing J.K. to live with his mother and sister deprives him of the care of his father, in whose custody he had been for years. It was also against J.K.’s expressed preferences and profoundly upsetting to him. Finally, the father submits that it will have the effect, albeit currently muted by the pandemic’s imposition of virtual school attendance, of causing J.K. to change schools, disrupting relations with his friends.

[25] The difficulty with the father’s argument is that the trial judge gave detailed consideration to J.K.’s best interests and found that they required him to reside with the mother and sister, and that there be a temporary suspension, followed by a re-introduction in defined stages, of contact with the father. She considered the very matters that the father relies on; specifically, J.K.’s preferences, his attachment to his father, the emotional impact of the order she was going to make, and the schooling and social supports he had and would have. The father’s irreparable harm and balance of convenience arguments thus proceed on a different view of J.K.’s best interests than taken by the trial judge. But, on a motion to stay, the result of the trial is to be treated as prima facie correct: Circuit World, at para. 13.

[26] Parenting decisions are inherently exercises in discretion: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. A trial judge’s exercise of discretion, and the factual findings in connection with it, are entitled to deference on appeal: A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 4. That caution is even more apposite on this sort of motion, where the opportunity to examine the record is even more limited than it will be on the appeal itself.

[27] The father points to statements in the mother’s affidavit about J.K.’s difficulties in adjusting since the Order was made. But the mother’s evidence taken as a whole paints a picture of J.K.’s progress – not without bumps in the road – to building relationships with his mother and friends, accepting the benefits of counseling, and forming a strong basis for a continuing positive relationship with his father.

[28] As it is almost two months since the Order was made, staying it would not preserve the status quo, but would disassemble the structure the trial judge put in place and replace it with the very circumstances she found not to be in J.K.’s best interests; it would run the risk of undoing the very benefits that the trial judge fashioned the Order to achieve.

[29] Accordingly, the motion to stay is dismissed.

Security for Costs

[30] The mother asks for security for costs. She says that the trial judge will likely award costs of the trial in her favour, that the father was not forthcoming in his financial disclosure, and that he will likely owe her arrears of support.

[31] The mother relies on r. 61.06(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that security for costs may be ordered where, among other things, there is good reason to believe the appellant has insufficient assets in Ontario to pay the costs of the appeal. This has not been shown. The mother’s evidence is that the father owns two properties and the trial judge found that he earns substantial income.

[32] The motion for security for costs is dismissed.

Conclusion

[33] Both motions are dismissed.

[34] So that the appeal proceeds in a timely way, I direct the father to perfect the appeal within 30 days of today’s date. The mother shall deliver her materials as a respondent to the appeal within 30 days thereafter.

[35] Success on the motions was divided. No costs are ordered.

“B. Zarnett J.A.”

[1] There were also financial issues, including child and spousal support.

[2] The mother is not permitted to change either of the children’s schools during the current 2020-2021 academic year.