Court File and Parties

COURT FILE NO.: 95/19 and 37882/15 DATE: 2020-05-26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOELLE SPADACINI-KELAVA, Applicant AND: DAVID GEORGE KELAVA, Respondent

BEFORE: Kurz J.

COUNSEL: Aaron Franks and Martha McCarthy for the Applicant Harold Niman and Donna Wowk for the Respondent

HEARD: In writing

Endorsement

[1] The regular operations of the Superior Court of Justice have been suspended until further notice as a result of the serious health risks posed by COVID-19. At this time of pandemic, only the most urgent matters, and a limited number of other matters can be heard. These requirements are set out in the May 13, 2020 new Consolidated Notice to the Profession as it applies to the Central West Region Central West Region, https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/ and https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-cw/ (collectively, the “Notice”)

Introduction

[2] Both parties appeal the arbitration award of Alfred Mamo regarding parenting and financial matters, dated September 10, 2019, and his clarification award of October 25, 2019 (collectively “the award”). Each party moves for relief prior to the determination of the appeal (which they agreed would be decided in writing).

[3] In her amended notice of motion of May 7, 2020, the Applicant mother, Joelle Spadacini-Kelava (“Joelle”) moves to stay the parenting provisions of the award and in particular (although not exclusively) the terms that require the parties’ children to return to Ontario by May 31, 2020. She also seeks to provide fresh evidence to the court in support of her appeal.

[4] The Respondent father, David George Kelava (“David”), resists Joelle’s motion. In the alternative, he moves to have his own fresh evidence affidavits admitted in this appeal if the court admits Joelle’s fresh evidence.

[5] Joelle originally sought relief against David under the Fraudulent Conveyances Act, or in the alternative, a preservation order under s. 12 of the Family Law Act. On May 22, 2020, she advised the court that she is not proceeding in regard to those heads of relief, even though both parties had filed extensive materials in regard to those claims.

[6] In support of her motion, Joelle has filed two of her own affidavits and one of Erin Orr, a therapist who provides services to the parties’ autistic daughter. Joelle seeks to have them admitted as fresh evidence in the appeal under s. 134(4)(b). She also seeks to admit the affidavits of Brigitte Barsalou, the lawyer who remotely commissioned the fresh evidence affidavits.

Background

[7] The background to this matter is briefly summarized out in Mr. Mamo’s costs award of May 7, 2020, as follows:

4. The parties who were married on May 10, 2000, had two children of their marriage, Daks born July 17, 2008, and Coco, born April 27, 2010.

5. The family lived together in the Greater Toronto Area (GTA) until the Spring of 2014 at which time the mother and the children began to live in Indiana in the United States of America, so as to allow Coco to attend a specialized centre for the treatment of autism (BACA) in Indianapolis.

6. While Joelle and the children were in Indianapolis, on a time-limited Visa, David continued to live in the matrimonial home in Oakville, Ontario and visited with Joelle and the children frequently. After the breakdown of the relationship and separation in May of 2015, David continued to live in the former matrimonial home and Joelle continued to live in Indiana.

7. The issues to be determined at the hearing included:

   i. Should the children continue to live in Indianapolis or return to the Oakville area?

   ii. What would the parenting plan, including decision making and residency requirement entail?

   iii. Ownership of the matrimonial home;

   iv. Equalization of net family property;

   v. A determination of retroactive and prospective child and spousal support as well as extraordinary expenses relating to children.

[8] Mr. Mamo made a multidirectional parenting award that required the children to be returned to Ontario upon the earliest occurrence of a number of circumstances, and in any event by May 31, 2020 at the latest. Until then, the children would remain in Indiana in Joelle’s primary care. One of the key reasons that Mr. Mamo made that award was his finding that a facility in Toronto, the New Haven Learning Centre (“NHLC”), can offer Applied Behavioural Analysis (“ABA”) treatment to Coco that is equivalent to the high level, intensive treatment offered at Coco’s Indiana treatment centre, BACA.

[9] Mr. Mamo found that “[i]t is now possible for BACA to pass on the key to Coco’s learning to the NHLC and for Coco’s progress to continue in a community where long-term plans can be made with the support of her parents, brother, family and friends in the country of her origin.” A transition timetable would have to be established between BACA and NHLC “…so as to minimize disruption in the learning process and to transfer, to the extent possible, Coco’s confidence and relationship with her workers at BACA to their equivalent at NHLC.” Mr. Mamo stated that NHLC requires at least 60 days’ notice of any programme commencing for Coco.

[10] Another reason that Mr. Mamo required the children to return to Ontario was a finding that Daks deeply missed his father, David. In speaking to s. 30 assessor, Dr. Irwin Butkowsky, Daks “… clearly expressed a wish to return to reside in Toronto on order to see his father more frequently, as well as his family and previous friends” That being said, Daks also told Dr. Butkowsky that if he moved back to Ontario, he would miss his Indiana school and friends.

[11] Joelle asserts that the circumstances of the COVID-19 emergency have had a profound effect on her ability to carry out the parenting terms of Mr. Mamo’s award. Both BACA and NHLC closed in March due to the pandemic. BACA offered in-home ABA treatment for Coco until it partially reopened on May 11, 2020. That re-opening is only, in Joelle’s words, for “… a small number of high needs students to return and receive care in the facility.” Coco is one of those students. According to Joelle, she is “now back to most of her regular programming at BACA, although with certain modifications … [including social distancing]”.

[12] Joelle concludes that

… given Coco’s extraordinary needs and behaviours, we cannot simply “pick up and move.” I cannot stress the necessity of a detailed transition plan to be in place and for appropriate care and treatment to be available for Coco. Without them, regression is an overriding concern.

[13] In a footnote at this point in her affidavit, Joelle refers to the testimony of Dr. Butkowsky, in an exchange with Mr. Mamo. Dr. Butkowsky testifies to the importance of a transition period for Coco, between Indiana and Ontario. He stated that the persons in the best position to recommend that transition are the people at BACA and NHLC, who know Coco and understand the nature of her disorder. Dr. Butkowsky stated that once Coco is back in Ontario, there would be a need for “…some considerable support in the initial period of adjustment …and the slow introduction to a new program, new people and the availability of additional supports in the short term to address anticipated adjustment difficulty.” Ideally, money permitting, the people at NHLC would go to BACA in Indiana and vice versa. Dr. Butkowsky felt that the transition period could take months. However, due to their closures, the two facilities have not been able to complete a transition plan to which they took the first planning steps in February 2020.

[14] Dr. Butkowsky recommended that Daks stay in Indiana during the transition and that the two children come to Ontario together.

[15] Currently, due to the pandemic, NHLC cannot say when it is able to offer services to Coco. Sandra Hughes, the NHLC’s Executive Director, and Jennifer Hieminga, its Clinical Director, wrote to the parties on May 14, 2020. In that letter, NHLC informs the parents that their facility does not meet this province’s Phase 1 COVID-19 re-opening criteria. As a result, “… Coco’s offer of a start date of June 1, 2020 will regrettably be delayed to when the centre is able to safely open.” The writers add that “…once the centre reopens, Coco will most likely not be able to gain access to full-time centre based services initially, as we may be limited to a certain number of clients in the building at the time.”

[16] The letter’s authors refer to the NHLC’s summer closing dates during July remaining in effect. They:

… clinically recommend that continuity of treatment of care/services with [Coco’s] current provider [i.e. BACA] be considered until New Haven is able to offer Coco the intensive services she requires. In addition, the TeleHealth model that we currently have in place may not meet Coco’s needs at this time given that we do not have programmatic and behavioural history with her.

[17] Joelle argues that to require her to obey the award would be ruinous for Coco and harmful for her and Daks. Coco requires both daily ABA treatment and engagement in physical activities. She requires the treatment in order to make gains in communication and behaviour modification. She requires the physical activity in order to allow her to sleep and not start her day at 1:30-2:00 a.m.

[18] During the period that BACA was closed because of COVID-19 and no ABA treatment was available, “…there was always some level of chaos happening in [Joelle’s] house.” As Joelle explained:

When she is at BACA, Coco spends time with several different therapists a day because it is so physically exhausting to manage her behaviours. Coco is so strong now that it regularly takes more than one person to control her when she is having a behaviour.

[19] Without that level of assistance, Coco’s caregiver can have no break. That would also have an effect on the care and attention that Daks receives from his caregiver.

[20] Coco requires constant treatment and supervision, lest she be triggered to self-injurious tantrums, referred to as “behaviours”. Erin Orr, Coco’s team supervisor at BACA, testified at the arbitration that Coco displays far more aggressive behaviour outside of BACA than at the treatment centre. As set out below, Ms. Orr’s fresh evidence affidavit looked to the recent trend of those behaviours when ABA treatment was not available.

[21] Coco is at risk of serious harm during her tantrums. During previous tantrums, Coco has punched herself, scratched herself, and thrown herself on the floor while screaming. In mid-March 2020, Coco punched herself in the face so hard that she lost a tooth. She did so after Joelle drove by Daks’ closed (because of COVID-19) school on the way to drop Coco off at BACA. Coco was triggered simply by the fact that her routine was being changed by not first stopping at Daks’ school. The child requires the use of a helmet from time to time, in order to prevent self-harm. The mere display of that helmet often assists Coco to self-regulate.

[22] Following one of her “behaviours”, it can take days or longer for Coco to revert to her routine.

[23] Lacking a transition plan and with NHLC closed, Joelle argues that, as the children’s primary caregiver, she would, essentially be on her own if she now came to Ontario. She fears further chaos for both children.

[24] Joelle refers to the difficulties of transporting Coco (although admitting that there was a plan in place to bring the children to Ontario for March break access). Further on this point, Joelle states that she has no place to stay when she gets to Ontario. Her relationship with her parents, as Mr. Mamo noted, was once very close but is now tense. Even though she has stayed with them during visits, she and the children would be stuck in a basement apartment indefinitely if she were to move here. As the payment of the equalization payment is stayed, she lacks the funds to purchase a home in Ontario. Even the rents in the GTA are, in her opinion, prohibitive.

[25] The fresh evidence that Joelle relies upon is contained in two of her affidavits and one of Erin Orr. Joelle’s affidavits, dated May 5 and 16, 2020 offer a variety of evidence. Some of that evidence was or could have been provided to Mr. Mamo, some refers to events following the release of Mr. Mamo’s awards, some is argument. Joelle’s most salient evidence concerns her attempts at compliance with the award, the events that have occurred since the COVID-19 crisis began and their effect on her and Coco’s ability to transition to Ontario.

[26] David opposes all of Joelle’s motion. He had already indicated through counsel that he is willing to agree that Mr. Mamo’s award be stayed for 30 days, meaning that the children would not have to come to Ontario until June 30, 2020. He argues that if any further stay is required, it can be decided at that time. However he states that he does not anticipate that need arising.

[27] David points out that the underlying proceeding began five years ago, and that Joelle and the children have been in Indiana for the past six years. The appeals would have already been heard were it not for this court’s COVID-19 closure.

[28] David continues, arguing that Mr. Mamo gave Joelle seven and a half months to arrange the transition, yet she failed to effect a concrete transition plan. Mr. Mamo did not open the door to a review of the time to carry out the transition, as “…his core findings [included] that it was in the best interests of Coco and Daks that they be returned to the jurisdiction.”

[29] David argues that Joelle’s conduct in bringing her stay motion is simply a delaying tactic “… further to [Joelle’s] dogged determination not to have to leave Indiana.” If she were to move here, she could live with relatives. David would be willing to help out and even enter into a nesting arrangement with her. He points out that the parties had both submitted to Mr. Mamo that if the children were to be moved to Ontario, they should do so under a shared parenting arrangement. One of David’s key arguments in his appeal is that Mr. Mamo erred in deciding parenting in Ontario in manner that ran contrary to that shared parenting submission.

[30] David further points to Mr. Mamo’s costs award, where the arbitrator states that the price of the parties’ litigation has been “financially ruinous to this family”. He also points out that the children have not seen him since March 1, 2020, although they were scheduled, before the COVID-19 outbreak, to visit him during this past March break.

[31] With regard to the fresh evidence request, David denies that even Joelle’s updating evidence, including the letter from NHLC, amounts to fresh evidence for the purposes of this appeal. If there has been a material change in circumstances since the time of Mr. Mamo’s award, David contends, Joelle should bring a motion to change. However, if Joelle’s fresh evidence is admitted in this appeal, his fresh evidence should be allowed into evidence as well, to rebut it.

Analysis

1. Stay Request

[32] For the reasons that follow, I grant a stay of the parenting provisions of the award of Mr. Mamo. The stay will continue in force until the completion of the appeal.

Law re Stay

[33] Section 50(5)(b) of the Arbitration Act allows a court to stay the enforcement of an arbitration award until an appeal of that award is completed. The provision reads as follows:

Pending proceeding

(5) If the period for commencing an appeal, application to set the award aside or application for a declaration of invalidity has not yet elapsed, or if such a proceeding is pending, the court may,

(a) enforce the award; or

(b) order, on such conditions as are just, that enforcement of the award is stayed until the period has elapsed without such a proceeding being commenced, or until the pending proceeding is finally disposed of.

[34] That provision may be read in conjunction with s. 134(2) of the Courts of Justice Act, which grants the court the jurisdiction to” "make any interim order that is considered just to prevent prejudice to a party pending the appeal.”

Application of the RJR MacDonald Test to Parenting Cases

[35] The usual test for a stay is the well known one enunciated by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (Attorney General), 1 S.C.R. 311 at para. 48: 1) serious issue, 2) irreparable harm and 3) balance of convenience.

[36] In a case that involves parenting, the overriding consideration, which arises in the context of the three-part test, is the best interests of the child. In order to grant a stay of the parenting provisions of the Mamo award, I must be satisfied that it is in the best interests of the children, Daks and Coco. (Lefebvre v. Lefebvre, 2002 CarswellOnt 4325 (Ont. C.A. in chambers)). I must look to “…whether the child’s best interests require a stay for the, hopefully, short time necessary to afford the appellant the opportunity to have the decision reviewed.” (Berry v. Berry, 2010 CarswellOnt 10983 (Ont. C.A. in chambers), at para. 6).

[37] The three parts of the RJR MacDonald test are interrelated. The strength of one part can compensate for the weakness of another. In custody cases, the court must look at the three parts of the test holistically (Mudry v. Danisch, 2014 ONSC 4335 (Ont. Div. Ct.), at para. 166, G.(A.) v. B (J.), 2008 ABCA 61 at para. 12).

Serious Issue

[38] The first part of the RJR MacDonald test requires the court to make a preliminary assessment of the merits of the appeal in order to determine whether it presents a serious issue (RJR MacDonald Inc. v. Canada (Attorney General) at paras. 48-49). The threshold for this test is a low one. It must not be “frivolous or vexatious” (RJR MacDonald Inc. v. Canada (Attorney General) at paras. 54-55). The issue is not whether the decision below will be upheld (Berry v. Berry, at para.6).

[39] The contours of this appeal set by the arbitration agreement and s. 45(2) and (3) of the Arbitration Act. Those provisions require me to find an error of law or mixed fact and law in order to overturn Mr. Mamo’s award. Joelle raises arguments in regard to both potential areas of appeal in seeking to set aside Mr. Mamo’s parenting award. Her key (but not only) argument is that Mr. Mamo subordinated the children’s best interests to the Divorce Act’s maximum contact principle rather than vice versa. David, of course disagrees on this point. But he says that Mr. Mamo erred in making Joelle the primary caregiver after the return of the children to Ontario and in many incidents of parenting that arise out of that determination.

[40] I find that Joelle’s appeal is not a frivolous or vexatious one. The Mamo award changed a long-standing status quo. It requires the parents’ two children to move hundreds of kilometers back to Canada from the United States. The arbitration raised serious issues as to the separate needs of both children and the ability of each parent’s plan to meet those needs. The arbitrator’s decision required a balancing of the best interests of each child. Each parent argues that Mr. Mamo erred in some aspect of his determination of the children’s best interests.

[41] While the award was made by a very experienced family law expert and arbitrator after a lengthy trial, that fact is far from determinative of this motion (Berry v. Berry, at para. 6).

[42] The fact that David himself, while resisting the attempt to reverse the requirement to return to Ontario is also appealing parenting terms in the award, adds to the argument as to the seriousness of the issues raised in this appeal.

[43] Clearly this appeal raises serious issues.

Irreparable Harm

[44] The ordinary test for irreparable harm is “…whether a refusal to grant a stay would so adversely affect the applicant’s own interest that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.” The term “irreparable” refers to the nature of the harm suffered rather than its magnitude. (RJR MacDonald Inc. v. Canada (Attorney General), at paras. 62-3).

[45] In Mudry v. Danisch, cited above, Sanderson J., citing G.(A.) v. B(J.), supra, wrote of the best interests link between the irreparable harm and balance of convenience elements of the test for a stay pending appeal. She stated that:

171 In custody and access cases, irreparable harm and the balance of convenience are inextricably linked and "distils into an analysis of whether the stay's issuance or denial would better serve, or cause less harm to, the child's interest ". G. (A.) v. B. (J.), 2008 ABCA 61, 2008 CarswellAlta 191 (C.A.) at para. 12 where Justice Watson noted that “one has to look at the three parts of the test holistically, connecting irreparable harm with balance of convenience when little children are involved." Reeves v. Reeves, 2010 CarswellNS 39 (C.A.) at para. 21.

[Emphasis added]

[46] In Child and Family Services of Western Manitoba v. B. (K.), 2006 MBCA 48, the Manitoba Court of Appeal attenuated the test for irreparable harm in child protection cases. The test should be based on a risk of harm rather than a finding of harm itself. Writing for the court, Freedman J.A. stated:

In a child protection case, such as the present, I am not persuaded that the applicant for a stay must go so far as to establish that the child will suffer irreparable harm, if the stay is not granted. In civil litigation, irreparable harm may occur of damages are an inadequate remedy. That approach is not suitable when the best interests of children, potentially at risk of harm, are to be considered. To require that irreparable harm would be suffered would place an unrealistically high burden on the stay applicant, such as CFS. More importantly, it would make it difficult to give the child’s best interests appropriate consideration. Where there are serious allegations of child abuse and inattention to a child’s physical and emotional protective needs, as here, it is enough that the applicant for a stay establish that, on evidence, there is a reasonably perceivable risk that the child may suffer harm if the stay is not granted. The test designed for stays in the typical civil litigation case requires significant modification, before it is applied to a child protection case.

[Emphasis added]

[47] This is not a child protection case, where the state intervenes to protect a child from a risk of physical or emotional harm. But it is not an ordinary custody/access case either. Each child in this case has special needs. Coco has extraordinary special needs. As I will discuss in greater detail below, there is a risk of harm to each child if the move to Ontario is not properly carried out. That risk is related to the need for the continuity of treatment for Coco, a highly vulnerable child. Her vulnerabilities can have a significant effect on Daks, if Joelle moves to Ontario without the proper supports in place.

[48] Extrapolating from the B.(K.) case, it appears that the greater the concerns raised regarding a child’s physical or emotional welfare in a stay application, the more that the issue of irreparable harm is subsumed into a best interests analysis. In that event, the moving party need only show “a reasonably perceivable risk that the child will suffer harm if the stay is not granted.” As set out below in the balance of convenience test, that part of the test is made out here. I add that even without an attenuated test of irreparable harm, Joelle meets this part of the test for a stay.

Balance of Convenience

[49] In parenting cases, the balance of convenience stage of the analysis looks, not only to the harms that would be suffered by each party, but to the harm to children as well (Mudry v. Danisch, at para. 174). I would add that, while the interests of the parties must be considered, the best interests of the children must be the paramount consideration. Only that child-centred approach will recognize the centrality of best interests in all parenting decisions of the court.

[50] Here, Mr. Mamo’s decision that it would be in the best interests of the children that they return to Ontario was premised in large measure on two factual findings regarding Coco’s welfare:

1. that the services that could be provided to Coco by NHLC were equivalent to those provided at the time by BACA, and

2. that NHLC and BACA could work together to create a transition plan for Coco’s services to be transferred to NHLC.

[51] All of this changed with the pandemic. NHLC is closed and the date for its reopening remains in the air. In its letter to the parties of May 14, 2020, NHLC recommends that the continuity of Coco’s services continue with BACA. Further, even when NHLC reopens, it may not be able to immediately offer services to Coco. Even if it were able to do so, the transition planning, which began before the pandemic struck, is still in its infancy.

[52] I agree with the father that issues related to transporting Coco should not prevent her from returning to Ontario. I also acknowledge the argument that the mother was dilatory in arranging to return to Ontario pending the hearing of this appeal. Nonetheless, there are other reasons that David’s plan of the children returning to Ontario by the end of June 2020, is currently unrealistic and contrary to the children’s best interests. That may change by the completion of the appeal, but it is the case today. I note that Ontario public schools have recently been closed of the balance of the school year.

[53] While the parents disagree about the extent of Coco’s self-injurious behaviour and the effect of a suspension of ABA services on Coco’s problem behaviors, what is clear is that Coco is a very high-needs child. She is high on the autism spectrum and as set out above, she requires a great deal of ABA service, both to assist her in learning skills and in behaviour management.

[54] Erin Orr provided the court with an affidavit that spoke to the child’s need for a continuity of services. When Coco missed three days of service plus a weekend when BACA was closed in early March of this year, she showed an increase in problem behaviours (aggression, self-injury, and a precursor to that behaviour). She also demonstrated a decrease in her ability to tolerate any correcting or withholding behaviour in others. That behaviour continued for several weeks. Ms. Orr provided charts that diagrammed the spikes in Coco’s behaviour. She concluded that:

During any transition, it is critical that the lapse in ABA services for Coco be minimized. The data above [in charts that form part of Ms. Orr’s affidavit] clearly indicates that even brief lapses in treatment can result in significant deterioration of Coco’s skills and behavior management.

[55] This statement dovetails with Mr. Mamo’s arbitration finding, based on Ms. Orr’s testimony, that “… Coco’s aggressive behavior, in frequency and intensity, is more prevalent outside BACA, like at home or in a different environment.”

[56] In February 2020, Ms. Orr had begun to work on a transition plan with NHLC. But since NHLC closed in March 2020, she has not been in communication with anyone from that institution. There has been no progress on any transition plan, and one cannot be expected until NHLC re-opens.

[57] Currently, BACA, which has reopened, is providing Coco with a full-day programme plus some at-home assistance. That type of programming and assistance is not currently available through NHLC. Understandably, David has searched for alternative therapy providers in Ontario. But there are two problems with this approach. First, the use of individuals offering ABA in the home or an alternative centre are not the plan that David presented to Mr. Mamo. Of course, circumstances can change, as they have here. But the scant and imprecise evidence currently available offers no comfort that if Coco were to come to Ontario, she would have anything close to the level of therapeutic service that she currently receives in Indiana. That could be very risky to the welfare of both children.

[58] Second, Mr. Mamo’s award calls for Joelle to be the children’s primary caregiver in Ontario (assuming that she accompanies them here, which Mr. Mamo could not require her to do). That would put an extraordinary burden on her in that caregiver role were she were to return now to Ontario.

[59] David suggests that Joelle could live with relatives. But as set out above, Joelle says that that proposal is impractical, at best. Ignoring the family tensions, Joelle and the two children would be stuck in the basement of her parents’ home. In the alternative, David offers to enter into a nesting arrangement with Joelle. That plan is not workable in light of two facts. First, the Mamo award does not call for a shared parenting arrangement in Ontario. Second, in light of the circumstances of their separation, Joelle would not be physically comfortable sharing a home with David. It would be hard to imagine any judge forcing her to do so.

[60] David fairly points out that it is possible for Daks’ needs to be lost in the understandable depth of attention placed on Coco’s needs. Daks has his own special needs. He has been diagnosed with Attention Deficit Hyperactivity Disorder and depression. He has spoken of harming himself, although there is no evidence that he has actually attempted to act out his words. As it stands, Mr. Mamo has found it to be very much in Daks’ best interests to return to Ontario and spend time with his father. But again that has to be seen in the context of the arrangement set out in the award that sees Joelle continue as Daks’ primary caregiver (as she has for the past six years). If Joelle is overburdened in caring for Coco, her ability to care for and provide the necessary attention to Daks will be diminished. That could harm Daks as much as missing his father.

[61] In the alternative, Joelle may be forced to take necessary attention away from Coco in order to direct it to Daks. In either event, the best interests of both children, as found by Mr. Mamo, cannot be met by requiring Joelle to move to Ontario until NHLC is ready to offer services to Coco that are equivalent to those offered by BACA. That would require a period of transition as well.

[62] David may wish to offer a treatment plan or programme that approximates the plan that he offered to Mr. Mamo, but he has not offered concrete evidence of the existence of such a plan or programme in this motion.

[63] All of the above is the case whatever the disposition of the appeal. I add that there is the possibility that Mr. Mamo’s award, requiring the return of the children to Ontario will be reversed. In the event, if Joelle had given up Coco’s spot at BACA and moved to Ontario with the children, she would be left scrambling to resume treatment in Indiana. Coco’s spot may have gone to someone else. The children would have been forced to “yo-yo” from Indiana to Ontario and then back again to Indiana, all within a span of a few months. Each trip across the border is fraught at these times, with the possibility of being allowed to return to the U.S. being uncertain in the face of presently mutually closed borders. Further, each trip across the border will require 14 days of self-isolation, which, as Joelle stated, would “pose an extreme challenge” to her and the children. During each of those 14 days, Coco will be without ABA treatment.

[64] In short, it is not in the children’s best interests to be required to come to Ontario by May 30 or June 30, 2020, whatever decision I make in upholding or setting aside any part of the Mamo award. Accordingly, I grant a stay of the parenting terms of the Mamo award until the completion of this appeal.

[65] If I uphold the return to Ontario term of the Mamo award, and the present COVID-19 circumstances continue, I will have to consider what order under s. 134 (1) would be just and in the children’s best interests.

[66] I add one obvious point for the benefit of the parties. My finding in regard to a stay relates to the immediate issues raised by the COVID-19 crisis. In making this decision, I am only considering whether compliance with the award by May 30, 2020 or June 30, 2020 (as offered by David) meets the criteria for a stay of the award. It is not an indication of any prejudgment on any issues in the appeal itself. I have yet to decide those issues.

2. Fresh Evidence

Test for Fresh Evidence

[67] My jurisdiction to allow fresh evidence on an appeal arises from s. 134(4)(b) of the Courts of Justice Act, which reads as follows:

Determination of fact

(4) Unless otherwise provided, a court to which an appeal is taken may, in a proper case,

(b) receive further evidence by affidavit, transcript of oral examination, oral examination before the court or in such other manner as the court directs; …

[68] The long-standing, four-part test for the admission of fresh evidence on appeal was set out by the Supreme Court of Canada in R. v. Palmer, [1980] 1 SCR 759, as follows:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1964] S.C.R. 484.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[69] In Sengmueller v. Sengmueller, [1994] O.J. No. 276 (Ont. C.A.), McKinlay J.A., writing for the Ontario Court of Appeal stated at para. 10:

One obvious problem with admitting on appeal evidence which did not exist at the time of trial is that such evidence could not possibly have influenced the result at trial. It is argued for the appellant that admitting such evidence on appeal would result in there being no finality to the trial process, that it would tend to turn appeal courts into trial courts, and that it would unacceptably protract legal proceedings. All of these objections are valid and compelling. However, in a case where the evidence is necessary to deal fairly with the issues on appeal, and where to decline to admit the evidence could lead to a substantial injustice in result, it appears to me that the evidence must be admitted.

[Emphasis added]

[70] While Sengmueller was a family law case, it did not deal with parenting. The evidentiary issue in that appeal was whether the court could rely on fresh evidence related to a post-trial drop in the value of property that was included in an equalization calculation.

[71] In Decaen v. Decaen, 2013 ONCA 218, the Ontario Court of Appeal wrote that “[w]here child welfare is at stake, a more flexible approach to fresh evidence is appropriate.” In admitting the fresh evidence, the court found it only necessary to find that it bears directly on the best interests of the children, and that it is reasonably capable of belief (having been provided by the Office of the Children’s Lawyer (the “OCL”)).

[72] The Decaen approach was approved by Weiler J.A., writing for the Ontario Court of Appeal in H.E. v. M.M., 2015 ONCA 813. She added at para. 71:

Flexibility in such matters is consistent with the need for up-to-date information on children, whose fate often hinges on a determination by judges, and is thus in line with the overarching criterion for admission, namely, the interests of justice.

[73] That being said, the proposed fresh evidence must still adhere to the Palmer test, and in particular it must be credible and reasonably capable of belief (para. 72). In admitting some of the evidence offered to the court, Weiler J.A. explained:

75 In light of this court's discretion to admit fresh evidence and the [Children’s Law Reform Act’s] purpose of ensuring that custody applications are determined based on the best interests of the child, it is in the interests of justice to admit the evidence.

[74] In Ojeikere v. Ojeikere, 2018 ONCA 372 the Ontario Court of Appeal considered the admission of fresh evidence in an interjurisdictional case raising issues not entirely dissimilar to the key parenting issue in this appeal, whether the children should be returned to their original domicile. The court in Ojeikere had to determine whether an Ontario custody proceeding should be stayed in favour of a Nigerian one. The parents were Nigerian, but their children were Canadian. The children had lived for five years with their mother in Nigeria, where their father had moved. The mother then returned them to Ontario without the father’s consent. The Ontario court had to consider whether it could assume jurisdiction over the children’s custody under s. 23 of the Children’s Law Reform Act. That provision allows an Ontario court to assume jurisdiction in a custody case if a child would suffer “serious harm” if the child remains in or is returned to the custody of the person legally entitled to custody, or the child is removed from Ontario.

[75] The court in Ojeikere considered the test for the admission of fresh evidence found in both Palmer and Sengmueller. Laskin J.A. writing for the majority, stated that the two tests are not materially different. However, the test in Sengmueller was “… perhaps more demanding”, although that difference was irrelevant to the case before him. [1]

[76] More germane to this case, Laskin J.A. found at para. 47 that “…both tests are applied more flexibly in custody or child welfare cases to allow the court to have up to date information about a child and the child’s best interests.”

[77] Applying the test in Sengmueller, Laskin J.A. wrote at para. 48 that fresh evidence is admissible in a parenting case if the moving party can prove that the proposed fresh evidence:

• Is credible;
• Could not have been obtained by reasonable diligence before trial or motion; and
• Would likely be conclusive of an issue on the appeal.

[78] That being said, Laskin J.A. signalled that when the fresh evidence related to the best interests of children and in particular, potential harm to them, the Sengmueller test would not be applied as rigourously as in other cases. The fresh evidence issue in Ojeikere was whether to admit the evidence of an OCL clinician. The clinician’s affidavit concerned her interviews with the children and parents and attached the children’s school records. The clinician’s most relevant evidence “…set out the children's wishes, their feelings about their parents, and their objections to returning to Nigeria.” (para. 43)

[79] Laskin J.A. admitted the evidence even though he found that it failed to meet the “due diligence” portion of the test. He wrote at para. 49:

But I would not rely on any failure to meet the diligence requirement to preclude the admission of the fresh evidence. This court needs the evidence filed by the OCL to properly assess "serious harm". Finally, in my opinion, the evidence is likely conclusive of the principal issue on this appeal: would the children suffer serious harm if required to return to Nigeria?

Laskin J.A. added in the following paragraph that the fresh evidence “is critically important.”

[80] In his concurring opinion, Miller J.A. took no objection to the introduction of fresh evidence. However he took a somewhat different view of some aspects of the children’s views and preferences, which had been presented to the court through the fresh evidence.

[81] From all of this, I conclude that the more the proposed fresh evidence relates to the children’s best interests and any risk of their harm, the less rigourously the Palmer or Sengmueller test will be applied to the proposed fresh evidence.

Analysis Regarding Fresh Evidence in this Case

[82] Clearly, the evidence of steps that have been taken following the release of the Mamo award and the effects of the pandemic on the plan accepted by Mr. Mamo could not have been adduced at trial through the application of due diligence. That evidence is relevant to a key issue in the appeal, whether it is in the best interests of the children that they be returned to Ontario. It is credible in the sense of being capable of belief. David does not deny the truth of the key elements of the proposed fresh evidence, particularly regarding the closing of NHLC, the re-opening of BACA and the lack of a present transition plan for Coco. David does offer his own fresh evidence response and interpretation of that evidence as well as elements of a possible plan for the children to return to Ontario. Finally, the proposed evidence could affect the ultimate determination of the appeal in that the ability of the NHLC to provide services equivalent to BACA was a central finding that led Mr. Mamo to require the children’s return to Ontario.

[83] David raises the issue of the fresh evidence turning this appeal into a hearing de novo. He argues that the proper role of Joelle’s fresh evidence is in support of a motion to change rather than an appeal.

[84] The three cases that David relies on to make his point are not particularly helpful. Two do not deal with parenting issues at all. Instead, they deal with spousal support (Radcliff v. Radcliff, 2000 CarswellOnt 1930), or child support (Froehlich-Fivey v. Fivey, 2018 ONCA 214). The one that deals with parenting issues is the thirty-year-old decision of the Ontario Court of Appeal in Dumas v. Dumas, 1990 CarswellOnt 320 (Ont. C.A.). There, in exceedingly brief reasons, the court spoke of an appeal not being a rehearing of a trial. In that case, grandparents who had lost a custody trial to a parent, attempted to file evidence of report cards and a letter, all created after trial. The court made no reference to the Palmer test. But it clearly felt that the evidence would have no effect on the appeal, which it found to have no merit. The entire decision, dismissing both the motion and the appeal, was five paragraphs long.

[85] David’s argument that the fresh evidence should relate to a motion to change may have more effect if it related to support rather than serious parenting issues and a risk of harm. That point was made by Laskin J.A. in Ojeikere. Here, Joelle‘s fresh evidence clearly deals with the children’s best interests and the risk of harm to them if they are required to prematurely return to Ontario.

[86] However, as David points out, not all of it is fresh. Some was presented before Mr. Mamo and is being offered for some form of context. Some is argument as well. Some concerns attempts to resolve issues between the parties.

[87] Much the same can be said about David’s rebuttal fresh evidence. Joelle objects to the introduction of David’s fresh evidence despite seeking to file her own fresh evidence, and despite the fact that David’s fresh evidence seeks to respond to Joelle’s evidence. She states, in part, that he has split his case, that he responds to her submission rather than her evidence, and that he mischaracterized evidence. Yet Joelle has filed a reply affidavit to David’s last affidavit, speaking to the present circumstances of Coco’s care.

[88] It is in the best interests of the Kelava children to allow all evidence that bears on their present best interests and risk of harm if the Mamo award were enforced during this pandemic. It is also in the interests of justice to allow David to fully respond to Joelle’s evidence. I note that he has filed a sur-reply affidavit, giving him the last say. This overcomes any prejudice that he can claim with regard to Joelle’s fresh evidence.

[89] Here, there is no one affidavit that is clearly inadmissible. Instead, each of the parties’ affidavits contain elements that are relevant to the appeal, others that are offered for context, and other parts that are not fresh evidence upon the test set out above. I am only willing to allow the fresh evidence tendered by the parties that deals with:

• The effect of the COVID-19 pandemic on:
  • the services offered by each of BACA and NHLC,
  • the children in Indiana and Ontario, if they return;
  • the ability to transition plan in accord with the Mamo award;
  • Joelle’s ability to return with the children to Ontario;
  • Any potential plans for that return, including any alternative ABA services available in the GTA,
• the parties’ efforts to arrange the return of the children to Ontario, and
• the present circumstances of the children.

[90] During a conference call with counsel, I invited them to confer in order to determine whether they could agree on what portions of each set of fresh evidence affidavits can be admitted into evidence for this appeal on consent. They demurred. I could ask them to redo their affidavits in light of my comments above, but that would further delay an appeal whose timing is very important. I could do counsel’s job for them, but that would equally delay the determination of this appeal and would not be an efficient use of my judicial time.

[91] Instead, as the evidence proffered by each party includes substantial portions relating to the children’s best interests and risk of harm as well as evidence that is presumably intended to contextualize the best interests/harm evidence, I will admit the affidavits set out below without engaging in paragraph by paragraph vetting. Rather, I will rely only on the portions of those affidavits that meet the criteria set out above. I will ignore evidence that fails to meet that criteria. Judges often perform that function in ignoring improper evidence that they hear at trial.

Order

[92] For the reasons set out above I make the following order:

1. I stay paragraphs 256-258 of the award of Alfred Mamo, dated September 10, 2019. The stay will continue in force until the completion of the appeal.

2. I admit into evidence for this appeal, the following affidavits: i. affidavits of Joelle sworn May 5, 2020 and May 16, 2020; ii. the affidavit of Erin Orr sworn April 16, 2020; iii. the affidavits of Brigitte Barsalou, sworn May 5, 2020 and in regard to commissioning Joelle’s affidavit of May 16, 2020 (I am uncertain whether it has yet been filed. If not, it should be filed forthwith); iv. the affidavits of David, sworn May 14 and May 18, 2020.

3. The issue of costs of this motion is reserved to the completion of the appeal.

“Marvin Kurz J.” Electronic signature of Justice Marvin Kurz, Original will be placed in court file Dated: May 26, 2020

[1] Laskin J.A. explained that the difference between the two tests in a subsequent footnote There, he implied that the third element of the Sengmueller test is slightly more rigorous than that in Palmer. He described that element of the test as “… the evidence is admissible if, believed and taken with the other evidence, it could be expected to affect the result.”