Court File and Parties

Court File No.: DC-16-0944-00 Court File No.: FC-14-46682-00 Date: 2016-06-22 Ontario Superior Court of Justice

Between: Regina Musheyev, Applicant/Respondent And: Ronen Gilkarov, Respondent/Appellant

Before: Charney J.

Counsel: Elliot Birnboim, for the Applicant/Respondent Sheila L. Bruce, for the Respondent/Appellant

Heard: In Writing

Reasons for Decision on Leave to Appeal

Introduction

[1] This is a motion by the respondent father (the father) for leave to appeal to the Divisional Court from the decision of Nelson J. dated March 31, 2016, in which the father’s motion for a change to the access schedule was dismissed.

[2] When the motion before Nelson J. was argued, the parties were subject to the “temporary, without prejudice” consent order of Nicholson J., agreed to at a February 23, 2015 case conference (the February 23, 2015 Order). That order gave the father access to the child of the marriage (born in 2012) every Tuesday and Thursday from the end of daycare to 7:15 p.m., and alternate weekends from Friday to Monday morning.

[3] The father sought to vary this temporary order by granting the father access on Tuesday and Thursday from the end of daycare until return to daycare the following morning.

[4] Nelson J. confirmed that the February 23, 2015 order was “without prejudice and was made on consent”. He rejected the father’s motion because the father was unable to show a “material change in circumstances”. He stated:

Father’s counsel argues that as the order is made “without prejudice”, which means the high standard of material change should not apply and the court should simply deal with Abby’s best interests.

I do not believe that a without prejudice order entitles the father to move against an order of this court without proving a material change. It simply means that it is without prejudice to the father to argue that a different access regime should be put into effect either at trial or some earlier time provided there has been a material change dictating a different result.

[5] Nelson J. dismissed the father’s motion for a change to the February 23, 2015 order stating “His motion to change Justice Nicholson’s order is dismissed as I find no evidence of a material change in circumstances.”

[6] The father argues that leave to appeal should be granted on the basis that Nelson J. erred in finding that the father had to establish a “material change in circumstances” before a court would consider changing a temporary “without prejudice” consent order.

[7] The father also seeks leave to appeal the temporary order of Nelson J. placing the child of the marriage in the temporary sole custody of the applicant mother. The father argues that the decision in this regard is not founded on the evidence and is contrary to the findings of the court.

The Test for Leave

[8] Rule 62.02(4) of the Rules of Civil Procedure provide:

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 judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge 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 his or her opinion, leave to appeal should be granted

[9] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave 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. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[10] A “conflicting decision” under Rule 62.02(4)(a) must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[11] Under Rule 62.02(4)(b) it is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[12] For a change to qualify as a “material change in circumstances”, “it must be a change that, if known at the time, would likely have resulted in different terms.” (Hickey v. Princ, 2015 ONSC 5596, 127 O.R. (3d) 356, at para. 50). This requires a two-step process. First, the party that seeks to vary the order must persuade the court that there has been a material change in circumstances. Once the court decides that the threshold for variation has been met, the court must decide on the variation to be made in view of the change, based on the best interests of the child.

[13] The father argues that Nelson J. erred in imposing a “material change in circumstances” test on a “temporary, without prejudice” consent order. “Without prejudice” means that the parties have agreed that the order is not intended to create a new status quo such that one party must show a material change in circumstances to vary the order. He argues that Nelson J.’s decision renders the term “without prejudice” meaningless, and will discourage such settlements in the future. Parties will be reluctant to agree to “without prejudice” agreements in the future if they know that the onus will be on them to prove a material change in circumstances before they can revisit the order.

[14] The father relies on the decision in Ceho v. Cehoe 2015 ONSC 5285, where Price J. concluded that requiring a party to establish a material change of circumstances where a temporary order is made without prejudice would be contrary to the agreement of the parties.

[15] While Price J. recognized that the requirement of a material change in circumstances applies regardless of whether the order made was by adjudication on the merits or on consent, he decided that it did not apply in cases where the court makes a temporary consent order on a without prejudice basis. He stated:

In the present case, there was no adjudication as to what custody or access order would be in the children’s best interests, and the parties agreed that the order would be a temporary one that would be “without prejudice” to either party’s position. Requiring a party to establish a material change of circumstances would be contrary to that agreement.

[16] The father also relies on the decision in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, wherein Chappel J. makes the following observations regarding “temporary temporary without prejudice orders” in the context of spousal support (at paras. 22-23):

Neither the Divorce Act nor the Family Law Rules refer to temporary, temporary without prejudice orders. However, as a matter of practice, such orders are often made at the early stage of Family Law proceedings to address very pressing issues and to provide some measure of order and stability to the parties’ immediate affairs. These orders are typically made at a time of high stress, and before the parties or their counsel have had a full opportunity to assess the parties’ respective financial situations or to formulate a clear plan for the parties to move forward with their separate lives. The evidentiary record upon which the court makes such orders is therefore typically incomplete…

The intention of temporary temporary without prejudice orders is to create an interim solution for an even shorter period of time than from the date of the order until trial. Having regard for this intention and the other considerations discussed above, the “substantial change in circumstances” test is not appropriate and does not apply.

[17] While Chappel J. was referring to spousal support, the same observations can be made about any “without prejudice” temporary consent order in family law. The intention of the parties is often to break a litigation logjam and achieve “some measure of order and stability” in the short term. These agreements give parties a chance to disengage without formally giving up their position in the litigation. Such agreements may last only a short time, although they sometimes remain in place for extended periods through inertia or litigation fatigue. There is little doubt, however, that “temporary, without prejudice” agreements would be far more difficult to achieve if one or the other party thought that they were creating a new status quo requiring a material change in circumstances before it could be varied.

[18] The opinion expressed by Nelson J. regarding the meaning of the term “without prejudice” appears to be at odds with the view expressed by Price J. and Chappel J. The issue of whether the “material change in circumstances” test is applicable to a “temporary, without prejudice” order is a matter of public importance that goes beyond the specific interests of the parties to this case.

[19] This is not to say that a without prejudice order cannot affect the status quo over time. The existence of a court order – even a “without prejudice” order – may create a factual context that a court cannot ignore and should take into account in future proceedings. The court cannot, however, draw an adverse inference against a party for having agreed to something on a without prejudice basis. Arguably, requiring a party to persuade a court that there has been a material change in circumstances before a motion to vary will even be considered is such an adverse inference.

Conclusion

[20] I accept the father’s arguments and find that the ground of appeal advanced with respect to the father’s motion to change the access order meets the standard in Rule 62.02(4)(b). There is good reason to doubt the decision of Nelson J. on this issue, and it does involve a matter of such importance that in my opinion, leave to appeal should be granted. The meaning of the term “without prejudice” in a temporary consent order warrants resolution by a higher level of judicial authority.

[21] In contrast, I am not persuaded that the father has met the requirements of Rule 62.02(4)(b) with respect to Nelson J.’s decision granting temporary sole custody to the mother. The father’s argument in this regard is an attempt to reargue the facts that were before Nelson J. There was sufficient evidence in the record upon which Nelson J. could reach his decision on the issue of custody. I agree with the mother that the court is not obliged to address every piece of evidence the parties put forward or to address every factor set out in s. 24 of the Children’s Law Reform Act. The issues raised by the father on this ground of appeal are fact specific and do not raise questions of public importance.

[22] Finally, while the father seeks a stay of Nelson J.’s order, he has advanced no arguments why a stay should be granted in these circumstances. Given my decision that leave should not be granted with respect to Nelson J.’s temporary sole custody order, there are no grounds to stay the order of Nelson J. pending the hearing of this appeal.

[23] I recognize that it is possible that the trial in this case will proceed as early as November, 2016, and that if it does, the issue raised on this appeal will likely become moot since the trial may be heard before the appeal. Given my decision to deny leave to appeal on the custody issue, the father may well reconsider whether an appeal on the access issue alone is merited if the trial does proceed in November.

[24] This court orders that leave to appeal on the issue of access is granted. Leave to appeal on the issue of custody is denied.

[25] Given the divided success on this motion there will be no order as to costs.

Justice R.E. Charney Released: June 22, 2016