Court of Appeal for Ontario
Date: August 30, 2019
Docket: M50741 (C67325)
Pardu J.A. (In Chambers)
Between
N.S. Applicant (Respondent)
and
R.M. Respondent (Moving Party)
Counsel
Gordon S. Campbell, for the Respondent (Moving Party)
Christian Pilon, for the Applicant (Respondent)
Heard: August 29, 2019
Reasons for Decision
[1] The moving party, the father, moves for a stay pending appeal of the judgment of Doyle, J. of the Superior Court permitting the respondent, the mother, to move the residence of two children, age five and seven from Orleans, Ontario to Montreal, Quebec. For the reasons that follow, the motion for a stay is dismissed.
[2] The father argues that applying the test in RJR-Macdonald v. Canada (AG), [1994] 1 S.C.R. 311, 127 D.L.R. (4th) 1 should lead to the grant of a stay. He submits that there is a serious issue to be tried as to the correctness of the decision under appeal, that he will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours granting a stay.
[3] The trial judgment from which the father appeals followed a 20-day trial.
[4] As this court has reiterated many times, an appeal court must not retry a custody case. Instead, this court "must approach the appeal with considerable respect for the task facing a trial judge in difficult family law cases, especially those involving custody and access issues": C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, at para. 4. As Bastarache J. noted in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13:
Custody and access decisions are inherently exercises in discretion. Case by case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.
[5] That deference is particularly owed, where, as here, the trial judge has given detailed and thoughtful reasons for her conclusions as to the children's best interests. After a 20-day trial, I begin with the premise that the trial judgment likely gives effect to the children's best interests.
[6] The father asks that the mother be enjoined from moving to Montreal, and that the status quo before trial be restored, pending the hearing of the appeal. Before trial, the father had access on Sundays for 4.25 hours, and on Tuesday and Thursday evenings for 2.25 hours. He had not had the children for overnight access. The trial judgment provided that upon the mother's move with the children to Montreal, the father would have access on alternate weekends, on Saturdays from 9:00 a.m. to 7:00 p.m. and on Sundays from 9:00 a.m. to 5:00 p.m. and one weekday visit for three hours in Montreal on notice to the mother. Commencing February 8, 2020, the alternating weekend access was to increase to include overnight access, from Saturdays at 9:00 a.m. to Sundays at 5:00 p.m. The father was given a week of access in the summer, a share of Christmas break access, and video call access on Tuesdays and Thursdays in the evening.
[7] The father asks in his Notice of Appeal for an order for joint or shared custody, and an order prohibiting the mother from moving the residence of the children.
[8] He sets out various errors he says the trial judge made in his notice of appeal:
The trial judge failed to consider the best interests of the children, and erred by not adopting the recommendations of an assessor.
The trial judge erred by failing to give effect to the maximum contact principle in circumstances where he says the best interests of the children would not be advanced by the move.
The trial judge failed to consider the advantages to the children of maintaining a link to their Inuit heritage, through their father.
The trial judge erred in admitting the decision of a disciplinary panel of the assessor's governing body, which was critical of the manner in which the assessor conducted the assessment.
The trial judge should have weighed the evidence about the children's best interests differently.
[9] This was a high conflict custody dispute. The parties had difficulty managing the exchanges of the children, to the point that the exchange had to be supervised, where that service was available. Each party blames the other for the tension between the parents. The affidavit evidence indicates that the children are adversely affected by the hostility between the parents.
[10] I would not characterize the grounds of appeal as particularly strong. For example, the father argues on appeal that the trial judge erred in admitting the findings of the regulatory body regarding the assessor. However, trial counsel consented to the admission of that evidence and argued that the real issue was the weight to be given to that evidence.
[11] The father had 8.75 hours of daytime access each week before the trial, a status quo to which he seeks a return pending the hearing of the appeal. The trial judgment gives him 24 hours daytime access every two weeks until February 2020, when it expands to 38 hours every two weeks, including overnight access on alternating weekends. The father does not give any concrete instance of how the access granted by the trial judge will lessen his ability to transmit his Inuit culture to his daughters, compared to the access he had before trial.
[12] The evidence establishes that the mother had the substantial responsibility for caring for the children and managing their activities and education. This continues with the trial judgment.
[13] The mother has agreed to transport the children to Ottawa to facilitate the father's access. She will maintain her home there, owned by her own mother, so that she can stay there on access weekends.
[14] The mother and the children have close ties to Montreal. She has moved to an apartment in the same building as occupied by her mother, some 550 meters from the school the children have just begun to attend. Her mother has offered her employment in property management, and she will earn $50,000 a year for the first two years and it is proposed that she will then take over management of her mother's portfolio of investment properties.
[15] The mother now has no income. Once permission to move was granted she stopped accepting contracts for translation work. Her income from that work was only approximately $20,000 a year. She also withdrew the children from the school they attended in the Ottawa area, and has now moved to Montreal and enrolled the children in the school close to her apartment in Montreal. There is a two-year waiting list to get into the school the children attended previously, and their places have been given to other children. According to the affidavit evidence, the children would accordingly have to change schools whether they stay in Orleans or move to Montreal. The children have spent a great deal of time in Montreal and a move there is likely to enhance their experience of the French language culture, which is also part of their heritage.
[16] I am not persuaded that the father will suffer irreparable harm if the move is not enjoined before the appeal can be heard. Travel from Ottawa to Montreal is said to take two hours by train. I do not view that as a particular hardship for either the parents or the children. The father can have as much, if not more time with the children than he had before trial. Most importantly, the frequency of exchanges marked by high levels of tension has been hard on the children. The children are of an age that they should be able to tolerate longer time with their father, but with fewer exchanges.
[17] The balance of convenience favours allowing the move to take place. The mother has enrolled the children in a new school, while the former school is no longer available. The mother has the certain prospect of employment income if she resides in Montreal. In the event the trial judgment is reversed so as to require the mother to reside in Orleans with the children, she can move back there, since the property in which she resided there will continue to be available to her.
[18] Having regard to the strength of the grounds of appeal, the absence of irreparable harm, the balance of convenience, and the best interests of the children I am not persuaded that the change of the children's residence to Montreal should be enjoined pending hearing of the appeal. The motion is dismissed, with costs to the respondent mother, fixed at $5,000.00.
G. Pardu J.A.
