Court File and Parties

Court of Appeal for Ontario Date: 2022-12-01 Docket: M53890 / COA-22-CV-0317

Favreau J.A. (Motion Judge)

Between:

Gugulethu Ncube Applicant (Appellant/Moving Party)

and

Basel Hassen Respondent (Respondent/Responding Party)

Counsel: Stephen P. Kirby, for the moving party Frances M. Wood, for the responding party

Heard: November 25, 2022

Endorsement

[1] The moving party, Gugulethu Ncube (the “mother”), brings a motion for a stay of an order made by Desotti J. on November 1, 2022. The motion judge ordered that the mother was to return the parties’ child to Milton within 14 days, and that the proper venue for these family law proceedings was Milton rather than Sarnia.

[2] For the reasons below, the motion for a stay is dismissed.

Background

[3] The mother and the responding party, Basil Hassen (the “father”), have a four-year old daughter.

[4] The parties moved to Sarnia in 2017 so that the father could attend a college program. The mother bought a townhouse while the parties lived in Sarnia.

[5] The parties separated in June of 2021. At the time, the father had a job in Pickering and the mother continued to live and work in Sarnia.

[6] Several months after the separation, the parties agreed to live together in Milton to facilitate their parenting arrangements. The mother says that the arrangement was meant to be temporary, and the father says that there was no agreement that this would be a temporary arrangement. The parties moved in together in Milton in early February 2022. They lived in the same dwelling, but they lived apart and coparented their daughter.

[7] This living arrangement did not work out, and in late March 2022, the mother moved into her own apartment in Milton. In September 2022, the child started junior kindergarten at a school in Milton.

[8] In early October 2022, the mother moved the child back to Sarnia and enrolled her in a school in that city.

[9] Soon after the move, the father started an application in the Superior Court in Milton for various forms of relief, including the return of the child to Milton. The mother then brought an urgent application in the Superior Court in Sarnia. On the motion, the mother took the position that she and the child were habitually residents of Sarnia and that the family law proceedings should take place in the court in Sarnia.

[10] In a decision released on November 1, 2022, the motion judge directed that the proper venue for the proceedings is Milton. He also ordered that the child be returned to Milton within 14 days. In making this direction, the motion judge stated that:

Forgetting for the moment whether there was any understanding that the mother/applicant would return to Sarnia if things did not work out.

Things did not work out, but that does not mean that the child that was habitually resident in Milton should be moved to Sarnia. The mobility issue awaits further adjudication. [Emphasis added.]

[11] The mother appeals the motion judge’s decision to this court and she brings this motion for a stay pending the appeal.

Discussion

[12] On a motion for a stay pending appeal, as held in BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16, the overall consideration is whether it is in the interests of justice to grant a stay. In making that determination, the court is to consider the following three factors:

a. Whether the appeal raises a serious issue;

b. Whether there will be irreparable harm if the stay is not granted; and

c. Whether the balance of convenience favours granting the stay.

[13] In my view, none of these requirements is met in this case and it is therefore not in the interests of justice to grant a stay.

(1) The appeal does not raise a serious issue

[14] Normally, there is a low threshold for showing that there is a serious issue to be tried. The moving party must only show that the appeal is neither frivolous nor vexatious: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 337.

[15] However, despite this low threshold, in my view, the appeal in this case is frivolous because it does not appear that this court has jurisdiction over the issues on appeal.

[16] In Fontaine v. Canada (Attorney General), 2021 ONCA 313, at para. 43, Paciocco J.A. noted that a single judge of this court does not have jurisdiction to dismiss an appeal on the grounds that the court does not have jurisdiction. However, in the context of a motion for a stay, where the judge hearing the motion is satisfied that the court probably does not have jurisdiction, concerns over lack of jurisdiction can be taken into consideration in assessing whether the appeal raises a serious issue.

[17] In this case, the motion judge’s order appears to be interlocutory and therefore this court is unlikely to have jurisdiction over the appeal. Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to this court from a “final order” of the Superior Court. In contrast, in accordance with s. 19(1)(b) of the Courts of Justice Act, an appeal from an interlocutory order of the Superior Court lies to the Divisional Court, with leave.

[18] As held in Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16:

An interlocutory order is one which does not determine the real matter in dispute between the parties—the very subject matter of the litigation—or any substantive right to relief of a plaintiff or substantive right of a defendant. Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided. [Citations omitted.]

[19] In the decision under appeal in this case, the motion judge dealt with two issues, neither of which appears to be final.

[20] First, the motion judge directed that the dispute between the parties should be adjudicated in Milton rather than Sarnia. This is not a final order. It does not finally determine the parenting issues between the parties or any other substantive issues between them.

[21] Second, the motion judge directed that the child should be returned to Milton within 14 days. In making this direction, as reviewed above, the motion judge specifically stated that “[t]he mobility issue awaits further adjudication.” Again, this is evidently not a final order. As recognized by the motion judge, the issue of whether the mother can move the child to Sarnia on a permanent basis, or even a temporary basis, is to be made at a later date. In effect, the parties are engaged in proceedings in Milton that are meant to address this issue.

[22] The mother relies on Johnson v. Ontario, 2021 ONCA 650, 158 O.R. (3d) 266, to argue that the decision at issue is final. However, Johnson does not assist the mother’s position. In Johnson, the appellant appealed an order dismissing a motion to extend the opt-out period in a class proceeding. In that context, this court held that the order at issue was final because it determined the “forum” in which the appellant could adjudicate her dispute. The issue of forum had an impact on her ability to choose the type of procedure in which her claim would be adjudicated, including her ability to choose her own lawyer and make her own tactical choices for the conduct of the litigation. The ability to opt out of a class proceeding is entirely different from the motion judge’s determination in this case that the proceedings are to be adjudicated in Milton, Ontario rather than Sarnia, Ontario. The mother will still have all her issues adjudicated in the Ontario Superior Court under all the same rules and laws as she would have in Sarnia. The only difference is a geographic one. It is hard to see how such a determination could be characterized as final.

[23] The mother also relies on Hopkins v. Kay, 2014 ONCA 514, where this court held that an order determining that the Superior Court has jurisdiction over an issue in a proceeding is a final order. The order made in this case does not deal with the issue of jurisdiction. The motion judge did not decide whether the Superior Court has jurisdiction over the proceedings. He simply decided in which geographical region of the Superior Court the proceedings should be heard.

[24] Accordingly, given that it appears that this court does not have jurisdiction over the appeal, I find that the appeal does not raise a serious issue. In light of this conclusion, I do not have to decide whether, apart from the lack of jurisdiction, the grounds of appeal raise a serious issue.

(2) There is no irreparable harm and the balance of convenience does not favour granting a stay

[25] I also find that the mother has not demonstrated irreparable harm. In the context of an order involving parenting issues, irreparable harm focuses on the child’s best interests: D.C. v. T.B., 2021 ONCA 562, at para. 9.

[26] The mother argues that the child will suffer irreparable harm because her life in Sarnia will be disrupted and because she will not be with her mother, who has been her primary caregiver.

[27] I reject both these arguments.

[28] The evidence is that the child had lived in Milton since February of 2022 and that she was enrolled in school in Milton in September 2022. The mother took the child out of school in early October 2022 to move her to Sarnia. In accordance with the motion judge’s order, the child is now back in Milton and back at her original school in that city. Therefore, the disruption occurred when the mother first moved the child to Sarnia in early October 2022, which was a unilateral decision by the mother. Even if the mother ultimately succeeds in showing that her original move to Milton in February 2022 was only meant to be temporary, there is no evidence that she notified the father of her intention to move back to Sarnia, which is contrary to the Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 39.3. Moreover, at the time the mother moved the child back to Sarnia in early October 2022, this was a disruption for the child. In any event, the child was only in Sarnia for a relatively short period of time in October and November 2022, and she is now back in Milton. At this point, it would arguably be more disruptive to allow her to be moved again back to Sarnia.

[29] In addition, the motion judge’s order does not, on its face, interfere with the mother’s regular parenting time. The motion judge was evidently satisfied that his order would only change the parenting time on a temporary basis if the mother was unable to find a job or accommodation in Milton in short order:

I consider the material before me to indicate that some sort of shared parenting existed that reflected the employment of the parties.

If the applicant/mother requires additional time to either find employment in Milton or a residence there, she shall have parenting time with her daughter, [name omitted] each weekend from Friday after school until Sunday at 6 PM.

[30] There is no evidence before me that the mother, who is a registered practical nurse and worked in Milton until recently, is unable to find work or a residence in Milton.

[31] In the circumstances, I am unable to find that the child will suffer irreparable harm if she is returned to Milton.

[32] Given my finding of no irreparable harm, the balance of convenience does not favour granting a stay.

Disposition

[33] The motion is dismissed. As agreed between the parties, the responding party is entitled to costs in the amount of $2,500, inclusive of HST and disbursements.

“L. Favreau J.A.”