DATE: 20020820 DOCKET: C38459 M28890

COURT OF APPEAL FOR ONTARIO

RE:

ALEXANDER SCHIPPERS (Appellant) v. CATHY ABBOTT (Respondent)

BEFORE:

ARMSTRONG J.A. (In Chambers)

COUNSEL:

Glen Cook for the appellant

No one appearing for the respondent

HEARD:

AUGUST 16, 2002

E N D O R S E M E N T

[1] [1] This is a motion to stay the order of Justice G. I. Pardu dated May 30, 2002 and for an order awarding joint custody of the children of the parties with primary residence of the children to the appellant.

[2] [2] Alexander Schippers (the “father”) and Cathy Abbott (the “mother”) began living together in October 1997. At that time, Ms. Abbott had a 10-month old daughter, Petra. Mr. Schippers was not the biological father but he attended the child’s birth and has acted as her father since then. Petra has no contact with her biological father. The parties had a son, Noah, on January 29, 1999. The parties separated in July 1999.

[3] [3] After the separation, the children lived with the father in the family home and the mother exercised access. Since June 2000, on the recommendation of the Children’s Lawyer, the children have alternated between the two parents’ homes on a weekly basis.

[4] [4] The daughter, Petra, is ready to commence school in September. In anticipation of this change an application for custody by each parent for both children was brought before Justice Pardu. She found that both parents have been fully and equally involved in the children’s care for two years. She determined that the mother should have custody:

The balance tips in favour of the mother on the issue of custody. It would be good for the children to be raised with their sibling (a third child of the mother with her present partner). The mother’s educational plans for the children seem more solid and more likely to succeed. It is better for the children to have their own bedrooms and sleep in them as they do at their mother’s. The father’s babysitting arrangements are rather insecure from the children’s point of view.

[5] [5] In the motion in this court the father sought a stay of Justice Pardu’s order and an order in the respect of custody of the children pending the appeal.

[6] [6] The father raises a number of issues in his affidavit which undoubtedly were raised before Pardu J. However, one of his major concerns is that two weeks after Justice Pardu’s order on May 30, 2002, without having advised Justice Pardu at trial, the respondent moved to “an unsafe area at the other side of Brampton”.

[7] [7] The motion is supported by a medical opinion dated January 20, 2000 from the children’s doctor who apparently was unavailable at trial. (I was advised that the trial was ordered to proceed on one day’s notice.) As of the time of the opinion, the doctor had seen the children interact with both parents. She expressed her concern about the mother spending more time with the children. However, this opinion is more than two and a half years old and without a current medical opinion it is not of much use to the Court.

[8] [8] I am concerned that this application for a stay is in effect a motion to vary the order of Pardu J. Indeed, counsel for the father argued before me that there now existed a material change in circumstances based upon the mother having moved to another location in Brampton.

[9] [9] In my view, the father should make arrangements to re-attend before a Superior Court judge (Justice Pardu if she is available would be ideal) with appropriate notice to the mother on a motion to vary. This clearly is a matter which needs to be resolved prior to the commencement of the school year in two weeks.

[10] [10] I am not satisfied that this is an appropriate case for a stay. However, given that the best interests of the children are paramount, I propose to adjourn the motion for a stay sine die so that if so advised the appellant may bring the motion back on after a motion to vary has been pursued. I dismiss the application in respect of joint custody as I do not believe I have any jurisdiction to deal with it and that is why I have suggested that the father should move for an order to vary if so advised.

“Robert P. Armstrong J.A.”