DATE: 20021219
DOCKET: C39084 (M29205)
COURT OF APPEAL FOR ONTARIO
LASKIN J.A. (in chambers)
B E T W E E N:
ANNE LEFEBVRE
Nathalie Boutet,
for the responding party (respondent in appeal)
Applicant (Respondent in appeal)
- and -
STÉPHANE LEFEBVRE
Philip M. Epstein,
for the moving party (appellant in appeal)
Respondent (Appellant in appeal)
Heard: December 11, 2002
LASKIN J.A.:
A. BACKGROUND
[1] This is a motion to stay a joint custody order and parenting schedule issued by Polowin J. on November 5, 2002.
[2] The appellant and moving party, Stéphane Lefebvre, and the responding party, Anne Lefebvre, are the father and mother of Gabrielle Lefebvre, now 3½ years old. Mr. and Ms. Lefebvre met in the summer of 1997 and married in November 1998. Gabrielle was born in April 1999. They separated in the summer of 2001. From August 2001 until trial – a period of fifteen months – Gabrielle was cared for under the terms of an interim order of MacKinnon J. Gabrielle was with her mother two nights per week and every other weekend; the remaining time, she was with her father, but cared for during the day by her paternal grandmother. No interim custody order was ever made.
[3] After a four-day trial, Polowin J. granted Mr. and Ms. Lefebvre joint custody of Gabrielle. She also ordered that the joint parenting plan be phased in: for the first eight weeks until January 2003, in every fourteen-day period, Gabrielle was to be with her father (and her grandmother) for eight days; and with her mother for six days. Beginning in January 2003, Gabrielle was to spend equal time with each of her parents.
[4] Pending appeal, Mr. Lefebvre asked to stay the joint custody order and parenting schedule. He asks for an order awarding him sole custody of Gabrielle and for a reformulation of the parenting schedule giving more “traditional,” albeit generous, access to Ms. Lefebvre. Alternatively, he asks that the interim order of MacKinnon J. be reinstated.
[5] The initial phase of the joint parenting plan ordered by Polowin J. has now been in effect for almost six weeks. The trial transcript is likely to be completed by mid-January. Once completed, the hearing of the appeal will be expedited. Therefore, in practice, this motion will determine the care of Gabrielle for approximately four months.
B. DISCUSSION
[6] Section 74 of the Children’s Law Reform Act, R.S.O. 1990 c. C.12 expressly provides that custody and access orders remain in effect pending an appeal to this court unless this court orders otherwise. Therefore, on this motion, Mr. Lefebvre bears the onus of showing why a stay is warranted. The usual three-part test for a stay applies. Mr. Lefebvre must show that (1) his appeal raises a serious question that the trial judgment is wrong; (2) Gabrielle will suffer irreparable harm if a stay is not granted; and (3) the balance of convenience favours a stay. The overriding consideration – reflected in this three-part test – is the best interests of the child. I must be satisfied that it is in Gabrielle’s best interests to order a stay. I will deal separately with the two orders Mr. Lefebvre seeks to stay.
1. The joint custody order
[7] The record shows that the relationship between Mr. and Ms. Lefebvre has been characterized by a great deal of conflict and hostility and, since separation, by an inability to co-operate in the upbringing of Gabrielle. Despite this conflict and lack of co‑operation, the trial judge awarded joint custody. In doing so, she relied on several recent trial decisions that have held joint custody may be appropriate even where the parents are openly hostile and uncooperative. These decisions contemplate not co‑operative parenting, but parallel parenting. The parents are given equal status, but exercise the rights and responsibilities associated with custody independently of one another. See Dagg v. Pereira, 2000 22459 (ON SC), [2000] O.J. No. 4450 (S.C.J.); Mol v. Mol, [1997] O.J. No. 4060 (Gen. Div.); Cox v. Down, 2002 78080 (ON SC), [2002] O.J. No. 2762 (S.C.J.).
[8] Mr. Lefebvre submits that the order for joint custody flies in the face not only of the report of the social worker appointed by the Office of the Children’s Lawyer, which recommended sole custody to the father, but more importantly, the consistent case law of this court, which has emphasized that joint custody should be awarded only where parents have shown an ability to co-operate. See Baker v. Baker (1979), 1979 1962 (ON CA), 23 O.R. (2d) 391 (C.A.); Tauber v. Tauber (1999), 1999 14774 (ON SC), 43 O.R. (3d) 42 (Gen. Div.), aff’d (2000), 2000 5747 (ON CA), 48 O.R. (3d) 577 (C.A.); Johnson v. Cleroux, 2002 44929 (ON CA), [2002] O.J. No. 1801 (C.A.).
[9] The trial judge considered this court’s jurisprudence, but nonetheless, concluded that joint custody of Gabrielle was workable. In doing so, she observed at p.59:
Both parties indicated that they felt that once the litigation was behind them and the issues finally settled, that communication between them could improve and importantly both parties indicated a willingness to go to counselling to improve their communication. With this in mind, with the spectre of contested litigation lifted and the issues finally determined, I believe that a level of communication can be fostered.
[10] On the limited material before me, the trial judge seems to have had sound reasons for ordering joint custody. Even assuming, however, that because of this court’s jurisprudence, her order raises a serious question – and thus Mr. Lefebvre satisfies the first part of the stay test – I am not persuaded that the trial judge’s order will cause irreparable harm to Gabrielle or that the balance of convenience favours a stay.
[11] Three considerations, taken together, militate against a stay. First, Ms. Lefebvre has always played an important role in Gabrielle’s life. From the time Gabrielle was born until the parties separated – a period of over two years – Ms. Lefebvre was the primary caregiver. Even after the parties separated, Ms. Lefebvre had Gabrielle in her care nearly half the time.
[12] Second, although the social worker and the trial judge disagreed on the appropriate custody order, both concluded that Ms. Lefebvre was a good mother. In the words of the social worker: “Gabrielle … appeared to be equally comfortable with either parent,” and “while they have differing parenting styles, the child would continue to thrive and be well cared for by either parent.” Indeed, the social worker found that “Ms. Lefebvre appears to be the more flexible of the two parents.” The social worker appears to have rejected shared custody of Gabrielle largely because of the conflict between her parents, even while acknowledging that much of this conflict was precipitated by Mr. Lefebvre’s unwillingness to be balanced about access. Despite the social worker’s recommendation, in my view her findings dispel any suggestion that maintaining the joint custody order until trial would be contrary to Gabrielle’s best interests.
[13] Moreover, her findings were echoed by the trial judge, who had the benefit of seeing and hearing from both parents over the course of four days. In her lengthy and thoughtful reasons she accepted the social worker’s evidence that Gabrielle would continue to thrive and be well cared for by either parent. She therefore held, “that Gabrielle would best benefit from a shared parenting situation.”
[14] In dividing the responsibilities between Mr. and Ms. Lefebvre, the trial judge gave Ms. Lefebvre the final say on medical and dental decisions affecting Gabrielle. Nothing in this record even remotely suggests that, in exercising this responsibility, Ms. Lefebvre will act contrary to her daughter’s welfare.
[15] In the light of the report of the social worker and the findings of the trial judge, I give little or no weight to the allegations made by Mr. Lefebvre and his mother in their affidavits filed on this motion that Gabrielle’s behaviour has deteriorated under the parenting schedule ordered by MacKinnon J.
[16] The third reason why a stay of the joint custody order is inappropriate is that it would undermine one of the principle benefits of the order: to ensure that Ms. Lefebvre as well as Mr. Lefebvre has authority to parent Gabrielle. Even though before trial there was no existing custody order, Mr. Lefebvre acted as if he had custody, often making decisions about Gabrielle unilaterally, without discussing them with her or even notifying her about them. The trip to Disney World last year at this time, which Mr. Lefebvre arranged without telling Ms. Lefebvre in advance, is a typical example. One of the trial judge’s objectives in ordering joint custody was to ensure that Mr. Lefebvre understood he was not the only parent in Gabrielle’s life. On the record before me this was a salutary objective.
[17] For these reasons, I am not persuaded that a stay of the joint custody order pending appeal is in Gabrielle’s best interest.
2. The parenting schedule
[18] Mr. Lefebvre asked me to stay the parenting schedule ordered by the trial judge and reformulate it so that Ms. Lefebvre would have more “traditional” access. Alternatively he asked that, pending appeal, I reinstate the interim schedule ordered by MacKinnon J.
[19] I see no merit to setting out an entirely new parenting schedule for the brief period between now and the appeal. In my view, the two choices are the parenting schedule ordered by the trial judge or the schedule ordered by MacKinnon J., which was in effect for fifteen months before trial.
[20] In reality, there is very little difference between the two. Under the order of MacKinnon J., Gabrielle was with her mother six days out of fourteen. Under the order of the trial judge, for the first eight weeks (ending in January 2003) Gabrielle was also with her mother six days out of fourteen. The two differences are that under the trial judge’s order, Ms. Lefebvre has Gabrielle every other week-end until Monday morning instead of Sunday night, and during the week on consecutive days instead of two days apart. If anything, the order of the trial judge is less disruptive to Gabrielle than the order of MacKinnon J.
[21] During the second phase ordered by the trial judge, Gabrielle is with Ms. Lefebvre seven days out of fourteen, or an extra two days a month. These two extra days are the Fridays (beginning at 4:30 p.m.) before the weekends that Ms. Lefebvre has care of Gabrielle. Again, the changes from the interim order of MacKinnon J. are minimal and not disruptive to the child. I am therefore not persuaded of any harm to Gabrielle from continuing to implement the trial judge’s parenting schedule.
[22] Accordingly, the motion is dismissed. Ms. Boutet asked to make written submissions on the costs of the motion because offers to settle may affect the disposition of costs. Counsel shall make these submissions by January 13, 2003. I am grateful to both counsel for their submissions on the motion.
Signed: “John Laskin J.A.”