ONTARIO COURT OF JUSTICE

COURT FILE NO.: 448/12 DATE: October 7, 2013 Citation: Downman v. Wilson, 2013 ONCJ 540

RE: CAROLINE TRACY DOWNMAN – Applicant and MITCHELL BARRY WILSON – Respondent

BEFORE: Justice Roselyn Zisman

COUNSEL: Melissa Fedsin for the Applicant Christopher Martin for the Respondent

HEARD ON: October 2, 2013

Introduction

[1] This is a motion to stay pending appeal the order of Justice R. Flaherty dated August 30, 2013. The effect of the order changes the primary residence of the child to the respondent (“father”) from a prior shared parenting arrangement and permits the child to reside full-time with the father in Hamilton and reduces the time with applicant (“mother”) spends with the child to one evening a week and alternate weekend access.

[2] In support of this motion, the mother filed her affidavit sworn September 25, 2013 with various exhibits including the report of the Office of the Children's Lawyer, correspondence from the judicial secretary and the handwritten endorsement under appeal. The father filed his affidavit sworn September 30, 2013 with various exhibits including the agreed statement of facts filed at the trial. The mother’s counsel sought to file a reply affidavit sworn October 1, 2013 that was objected to by father’s counsel as it was not proper reply. The reply affidavit was only admitted for the limited purpose of replying to the procedural issue raised by the father regarding the proper jurisdiction for this motion to be heard.

Background

[3] The parties cohabited from August 1, 2008 to June 1, 2010. There is one child of the relationship Jamie. During their cohabitation the parties resided in Oakville.

[4] After the separation, the father moved to Hamilton. The parties between themselves agreed to a shared parenting arrangement with Jamie travelling frequently between both of their homes.

[5] The mother began an application seeking sole custody and primary residence of Jamie as she alleged that the parties could not communicate and that Jamie required a parenting schedule with consistency and structure. The father filed an answer claiming sole custody and primary residence. [^1]

[6] On August 30, 2012 an emergency motion was argued before Justice O’Connell. Justice O’Connell ordered the Office of the Children's Lawyer to be appointed. On a without prejudice basis, Jamie was to be registered at the Pilgrim Wood Public School in Oakville as of September 4, 2012 and the parenting arrangements continue pending a full investigation by the Office of the Children's Lawyer.

[7] The mother deposes that in making this decision Justice O’Connell noted that Jamie was born in Oakville, the mother only worked three days a week and that the parties could not communicate.[^2]

[8] In September 2012 Jamie was enrolled in the Pilgrim Wood School in Oakville for junior kindergarten.

[9] On February 12, 2013, the Office of the Children's Lawyer report was released. Krystal Dorian, the clinical investigator assigned to this case recommended that the mother be granted sole custody, that Jamie remain at the Pilgrim Wood School, that the father have access on alternate weekends and one overnight during the week and that the parties share equally all holidays. There were further recommendations to assist the parties in better communicating and improve their parenting.

[10] A trial in this case proceeded on July 15, 16 and 17, 2013. The main issues at the trial were the issues of primary residence of Jamie Suzanne Wilson born September 4, 2012 (“Jamie”), joint or sole custody and whether Jamie would attend school in Oakville where the mother resided or Hamilton where the father resided. The mother was self-represented at the trial and the father was represented by his current counsel.

[11] During the three day trial, both parties agree that the judge’s hearing device failed a considerable number of times and that after a half day of trial, the trial needed to be moved to another courtroom. During the first morning, the mother testified in direct examination. The mother deposes that even after the trial was moved, the parties were asked to speak more loudly when the hearing equipment failed. Although the father does not dispute these facts, he deposes that Justice Flaherty was paying close attention to all of the evidence and it was necessary for him to question the mother at the conclusion of her evidence in chief as a result of gaps in her evidence. The father also deposes that the mother during the trial never expressed any concerns about the judge’s ability to hear.

[12] During the trial, the court heard the evidence of nine witnesses, being the mother, the mother’s sister, the mother’s former husband, the mother’s two children from her marriage, the father, the father’s daughter and Ms Dorion the clinical investigator.

[13] At the conclusion of the trial, judgment was reserved.

Order under appeal

[14] Following the trial, the parties received a letter from the judicial secretary on August 8th, 2013 advising that His Honour had not finished his reasons for judgment but he had decided that Jamie would attend school in Hamilton this fall and would have her primary residence with the father during the school week. The letter also stated that the mother would have one overnight with Jamie each school week.

[15] The mother’s deposes that she immediately contacted counsel but she was told that counsel could not advise her properly as to her legal remedy because there was no endorsement or final order.

[16] The father’ deposes that the mother and his counsel had a telephone discussion in which it was agreed that the mother would have access every Wednesday overnight. Further, the mother told the father’s counsel that she interpreted the letter of August 8th to say that Jamie would reside with her every weekend.

[17] As a result of this uncertainty, the father’s counsel forwarded correspondence to the judicial secretary, on the consent of the mother, requesting clarification.

[18] On August 27th, 2013, a second letter was received from the judicial secretary clarifying that His Honour’s decision was that Jamie would reside with the mother on alternate weekends.

[19] The mother deposes that as she was under the impression that she had to comply with the order she made arrangements to move Jamie to her father’s residence and for the change of schools.

[20] However, the mother then received legal advice that as there was no endorsement and His Honour had not released an order the outstanding order of Justice O’Connell was still in effect. Upon advising father’s counsel of her position, counsel for the father immediately wrote a letter to the court requesting an endorsement.[^3]

[21] On August 30th, the parties received the following handwritten endorsement:

“Previous order of Justice O’Connell is rescinded

For reasons to be delivered later

1. Child Jamie is to attend school in Hamilton commencing Sept. 3, 2013.

2. During school weeks, Jamie will have her principal residence with the Respondent father in Hamilton. Applicant mother to have one overnight visit with child on a day to be agreed upon, either Tuesday, Wednesday or Thursday. On that day, Applicant will pick up the child after school and take her to school the following morning.

3. Child Jamie will reside with the Applicant mother during the school year every other weekend commencing Friday Sept. 6, 2013 and take her to school the following Monday morning.

4. Holiday schedule overrides the school schedule as agreed in the minutes of settlement, filed.

5. Applicant mother shall pay child support to the Respondent father at the rate set out in the minutes of settlement every month commencing Sept.1, 2013.

6. The Applicant and the Respondent shall otherwise have joint custody of Jamie.

7. Written submissions re costs are invited.

[22] The mother has complied with this order.

[23] No written reasons have been received by the parties and there is no indication as to when the reasons are expected.

[24] The mother’s counsel has ordered the transcripts of the trial.

[25] A Notice of Appeal dated September 25th, 2013 has been served but not yet filed with the appellate court. The Notice of Appeal requests an extension of time to file pending the release of the reasons for judgment and for further grounds of appeal to be pleaded pending the release of the reasons for judgment.

[26] The grounds of appeal generally allege that there was a lack of procedural fairness as a result of the trial judge’s inability to properly hear the evidence, that he failed to give proper weight to the recommendations of the Office of the Children's Lawyer, that he misapprehended the evidence and did not fully apprise himself of the trial record materials or review the evidence properly to make a fully informed and fair decision.

[27] The mother’s counsel provided two examples of the trial judge’s misapprehension of the evidence.

[28] Firstly, the endorsement refers to the mother returning Jamie to school on Mondays after her weekend. However, the school Jamie attends in Hamilton is part-time and Jamie attends only on alternate Mondays and on Tuesdays and Thursday; the trial judge did not address the arrangements for the Mondays when Jamie is not in school. It is therefore alleged that the trial judge misapprehended the evidence by thinking that senior kindergarten in Hamilton was a full-time program whereas it is the senior kindergarten program at the Pilgrim Wood School in Oakville that is full-time. The father’s counsel submits that the father provided two different schedules setting out what days Jamie would attend school in Hamilton and His Honour was therefore aware that only a part-time senior kindergarten program was offered in Hamilton.

[29] Secondly, the endorsement indicates that the mother should pay the father child support at the rate set out in the minutes of settlement. The minutes of settlement only refer to the parties’ agreement on the holiday schedule. The father’s counsel points out that the parties did file a statement of agreed facts and that sets out the parties’ incomes and the applicable child support payment in accordance with the child support guidelines.

[30] However, what is clear is that without reasons for the decision reached by the trial judge it is not possible to determine if the trial judge misunderstood the two school programs and whether or not he considered when and where the mother was to return Jamie on the Mondays when she did not have school. This is an important issue as the mother only works two days a week ( at the time of trial she only worked three days a week) and therefore it is important for the trial judge to explain why if Jamie was not in school and her mother was not working why a third party should care for her.

[31] With respect to the issue of child support, the agreed statement of facts does not stipulate that support will be paid and without the reasons or a transcript, it is unclear if the a parties had agreed to the rate of child support and if there was an agreement or submissions as to the payment of any extraordinary expenses that are not referred to at all in the endorsement. What is obvious is there were no minutes of settlement regarding support and there is therefore an error in the endorsement. It is also obvious that the order is not clear as to what arrangements are made for the Mondays when Jamie is not in school.

[32] The mother’s counsel also submits that the trial judge erred in fact and law by making a decision contrary to, or by failing to give proper weight to the report of the Office of the Children's Lawyer. The father’s counsel submits that the Ms Dorion’s report is of limited value at this time as Ms Dorion she was a witness in the trial and that consequently the trial judge had a far more comprehensive and complete picture than simply her report. However, on this motion there is nothing else to rely upon but Ms Dorion’s report. I also query the process that was followed in view of the father’s counsel’s submission that the mother examined Ms Dorion and father’s counsel cross-examined her. I am left with a concern that the court may have not regarded and treated her as a witness of the court.

[33] In Ms. Dorion’s report she states as follows:

In discussions with both family members and professionals there is no doubt that Jaime is comfortable in Oakville, the town in which she was born and has lived her entire life. Jaime expressed enjoying attending school and was able to list off a few friends that she had made. However, more importantly the school reported that Jaime is presenting with some areas of concern regarding learning and development. The school continues to explore these issues and has already begun accommodating Jaime’s learning needs and are strategizing for Senior Kindergarten next year. Jaime is also connected with a family physician, childcare provider and appears to be well support in Oakville. To prevent any further disruption to Jaime’s life it will not be recommended that Jaime change schools at this time.

A joint custody recommendation was considered, however it is believed that a joint custody order would likely result in further conflict between parents and would likely result in continual mediation and likely litigation. For this reason it is recommended that Ms. Dowman be granted sole custody. There were numerous collaterals interviewed for this assessment and there were no significant concerns noted regarding Ms. Dowman’s ability to provide adequate care to Jaime and make appropriate decisions on her behalf. With that being said, there is absolutely no reason to support that Mr. Wilson should not be actively involved in all aspects of Jaime’s life and should be consulted regarding all major decisions related to Jaime. It is encouraged that Ms. Dowman place considerate weight on Mr. Wilson’s wishes and intentions for Jaime. The Court may need to reconsider a joint custody order if there is evidence to suggest that Ms. Dowman has created barriers for Mr. Wilson to participate in decision making pertaining to Jaime.

With regards to access, both parents identified significant concerns with the current access schedule, driving, the most concerning and having direct contact during access exchanges. Mr. Wilson reported that he would need to be a “part time dad” if Jaime did not change schools. Mr. Wilson reported that a “part time dad” meant that he would have alternating weekend access and would be unable to accommodate any more access then that given the circumstances. There were times during the assessment that it appeared that Mr. Wilson was not willing to provide an other alternative access arrangements in the event Jaime remained at her current school despite the Assessor making several attempts to explore alternative access options.

The current access schedule does not appear to be in the best interest of Jaime, specifically as she becomes older. It was evident that Jaime had no idea when and where she was going on a day to day basis which can contribute to a significant amount of underlying stress and anxiety for children. Additionally, Jaime was spending a significant amount of time travelling to and from Hamilton and Oakville at all hours of the day and night. For this reason it will be recommended a revised access schedule that will hopefully create less stress for all involved while ensuring that Mr. Wilson continues to have extensive amount of access time with Jaime without compromising the concerns of mileage costs and time spent travelling back and forth from Hamilton to Oakville.

Proper forum and jurisdiction

[34] It is submitted by father’s counsel that the proper forum for this motion to stay is Hamilton as pursuant to the final order Jamie is currently attending school in Hamilton and her primary residence during the school week is with the father in Hamilton. It is submitted that as the original court proceedings are now concluded, any claims for custody of and access to Jamie should be brought in the municipality where Jamie ordinarily resides which is now Hamilton. Father’s counsel relies on subrule 5(1) of the Family Law Rules and section 22 (1) of the Children’s Law Reform Act that stipulate that a case regarding custody or access is to be heard where the child ordinarily resides. Father’s counsel conceded that the appeal would be heard in this jurisdiction.

[35] This is not an original proceeding for custody of or access to Jamie but a motion to stay a final order of a proceeding that was commenced in this jurisdiction. The relevant provision relating to a motion to stay is subrule 38(35) of the Family Law Rules that provides as follows:

A temporary or final order may be stayed on any condition that the court considers appropriate,

(a) by an order of the court that made the order;

(b) by an order of the Superior Court of Justice.

[36] Section 74 of the Children’s Law Reform Act also uses similar language and provides that:

Order effecting pending appeal – An order under this Part is effective even if an appeal is taken from this order, unless the court that made the order or the court to which the appeal is taken order otherwise.

[37] I find that that based on these provisions it is unambiguous that this court has the jurisdiction to hear this motion.

[38] Father’s counsel also submitted that the Notice of Motion filed by the mother’s counsel did not set out the statutory rule upon which she relies and in the factum she filed incorrectly she relies on Rule 63.02 (1) (b) of the Rules of Civil Procedure.

[39] Although father’s counsel is correct that the relevant rule to be applied in this case is subrule 38 (35) (a) of the Family Law Rules, there is no prejudice to the father. The wording of the provision in the Family Law Rules and the Rules of Civil Procedure are similar and the father was obviously aware that this was a motion to stay even if the rule was not set out in the Notice of Motion.

Discussion

[40] On a motion to stay an order pending appeal the court must be satisfied that:

1. There is a serious issue for the appeal court;
2. Irreparable harm would result from the failure to grant a stay; and
3. A balance of convenience favours a stay.[^4]

[41] Further, in proceedings regarding children, the overriding principle is the best interests[^5] of the child.

[42] At this stage of the appeal process, I do not have any reasons for the judgment, the transcripts have not yet been prepared, and I only have the conflicting affidavits of the parties and the report of the Office of the Children's Lawyer. I have not had the benefit of hearing the witnesses and in particular the examination of Ms Dorion, the clinical investigator whose evidence the father deposes was considerably changed from her recommendation in her report.

[43] However, it is necessary for me at this stage to assess the merits of the appeal. If the appeal has little chance of success, then it would not be in Jamie’s best interests to stay the order and transfer her primary residence to the mother and order that she attend school in Oakville and then once the appeal is heard require that she be transferred back to the primary residence of her father and attend school in Hamilton.

[44] Applying the facts to the three part test for the granting of a stay, I find that there is a serious issue to be heard on the appeal and that the mother has good grounds for an appeal. I have considered that the threshold for a finding that there is a serious issue to be tried is relatively low. I have also considered that the courts are reluctant to retry custody cases as the trial judge has the obvious benefit of seeing the parties and the witnesses that testified at trial. However, in this case there are issues of procedural fairness as to the conduct of the trial, the errors that appear to have been made on the face of the endorsement and mother has raised significant concerns that the trial judge erred in fact and law.

[45] Further, I find that it is probable the mother will succeed on this appeal simply by virtue of the fact that a final order was made without any reasons. It is well settled law that the failure to give functional reasons that allow proper appellate review is an error of law. A party must be able to understand from the judge’s reasons the basis of the decision that had been arrived at. [^6]

[46] Courts have been critical of the weight, if any, that can to attributed to reasons that are delivered after a Notice of Appeal has been issued. Although there is a presumption that the delay in delivering reasons does not result in and of itself to creating a presumption that a trial judge will deliver result-driven reasoning; nevertheless, courts have expressed concern about this practice as justice must not only be done but must also appear to be done.[^7]

[47] I find that although the case law that has arisen is mainly in the criminal law context there is no less a requirement on family judges to explain to the parties how a decision was arrived at when dealing with issues affecting the future upbringing of a parent’s child. The decisions made in family law cases regarding children have a profound and long lasting impact on the lives of the parents and the children. In this case there are no reasons not even brief oral reasons that explain why the trial judge made the order he made in face of the recommendations of the Office of the Children's Lawyer.

[48] On the second branch of the test, I find that there will be irreparable harm to Jamie if the order is not stayed. I have considered the recommendations and concerns noted in the report of the Office of the Children's Lawyer as outlined in this judgment.

[49] I have considered that Jamie was born in Oakville and resided there fulltime until the parties separated. After the separation Jamie’s roots remained in Oakville. She attended junior kindergarten at the Pilgrim Woods School in Oakville, her daycare provider was in Oakville, she has friends at her school and in her neighbourhood and her family doctor is in Oakville. Although the parties had a shared parenting arrangement one of the parents can still be a primary parent. For example, the Office of the Children's Lawyer report indicates that the family doctor reported that it was the mother that attended to all of Jamie’s medical needs and her doctor does not recall the father attending for any appointments.

[50] As a result of the order made, Jamie has been in her new school for only a little over a month and only on a part-time basis. Her previous school in Oakville was aware that Jamie was having some learning difficulties and the school was prepared to offer her some extra assistance. The opportunity for Jamie to attend a full-time school program in a school that is already aware of her learning difficulties and for her to be in the primary care of her mother who is now only working two days a week is in her best interests. In considering if there is irreparable harm I have applied the overriding principle of the best interests of Jamie.

[51] On the third branch of the test, I find that the balance of convenience favours Jamie residing with her mother and attended her previous school in Oakville for the same reasons that I found that such an arrangement was in her best interests.

[52] The appeal should be heard as quickly as possible and although the Notice of Appeal has been served as I understand the submissions it has not yet been filed as counsel for the mother was waiting for the reasons for the decision to be issued. However, Jamie requires some finality. Counsel for the mother should therefore file her Notice of Appeal forthwith and both counsel should co-operate to attempt to have the appeal heard without undue delay.

[53] In submissions on this motion, father’s counsel did not specifically address the issue of the father’s access pending the appeal if the motion to stay was granted. The mother’s counsel submitted that the mother was prepared to agree that the status quo parenting arrangements be put back into place if so ordered by the court. However, based on the observations in the report of the Office of the Children's Lawyer and the concerns expressed by both parents, the previous schedule had too many transitions for Jamie and was confusing for her.

[54] As father’s counsel submitted that the mother was permitted generous access by the order of the trial judge and that the parenting schedule ordered provided Jamie with stability, I find that pending the appeal, the father should have the same generous access that was ordered for the mother by the trial judge. I would further order that as much as possible all pick ups and drop offs are to be at Jamie’s school to avoid Jamie being exposed to any conflict between her parents. This will also allow the father to remain involved with the school and to be informed about Jamie’s educational needs.

[55] There will be an order as follows:

1. The Applicant’s motion to stay the order of Justice Flaherty dated August 30, 2013 is hereby granted.
2. The child Jamie Suzanne Wilson born September 29, 2008 shall reside in the primary care of the Applicant and attend school at the Pilgrim Wood School in Oakville. The Applicant shall pick up Jamie at the end of school on Wednesday October 9, 2013 and she will remain in her care and commence school at the Pilgrim Wood School on Thursday October 10, 2013 or as soon as she can be registered.
3. The Respondent shall have the child in his care on alternate weekends commencing on Friday October 18, 2013 to Monday October 21, 2013 and each alternating week-end thereafter. The Respondent shall exercise access every Wednesday from after school to Thursday morning commencing October 16, 2013. Whenever Jamie is in school the Respondent shall pick her up and drop her at her school. Otherwise, the pick-ups and drop-offs will be at mutually agreed upon half way location.
4. Access for this Thanksgiving weekend shall be as agreed upon between the parties in accordance with Minutes of Settlement filed at the trial.
5. There will be no order for child support, without prejudice to a claim for child support by either party.
6. The Applicant will forthwith file her Notice of Appeal with the Superior Court of Justice. The parties will co-operate in proceeding with the hearing of the appeal without delay.
7. The Applicant shall obtain a Certificate of Stay pursuant to subrule 38 (42) and (41) of the Family Law Rules.

[56] If the Applicant seeks costs of this motion, brief written submission with a Bill of Costs should be submitted by October 22, 2013 and any response the Respondent to be submitted by November 5, 2013.

Justice Roselyn Zisman

DATE: October 7, 2013

[^1]: The positions of the parties in their pleadings is based on the affidavits filed by the parties on this motion as I had no access to the file which is with the trial judge. [^2]: As the trial judge has the file, I was not able to review any of the endorsements of Justice O’Connell who was the case management judge. [^3]: I have attempted to transcribe as best I can the handwritten endorsement and correct the numbering and spelling errors. [^4]: Tzaras v.Tzaras [2007] O.J. No. 5061(S.C.J.); Maharaj v Maharaj 2001 CanLII 4919 (ON CA), [2001] O. J. No. 1875 (C.A.); Barnes v.Parks 2001 CanLII 24146 (ON CA), [2001] O.J. No. 643 (C.A.). [^5]: Barnes v.Parks, supra. [^6]: R. v. Sheppard 2002 SCC 26, [2002] 1S.C.R. 869; Wieddrick v.LeMesurier [2006] O. J. No. 176(Ont.Fam.Ct..); [^7]: R. v. Jasmin 1954 CanLII 55 (SCC), [1954] S.C.R.410 at para.4; McArdle v. Mannie [1955] S.J. No. 38 (Sask. C.A.) at para.12; R. v. Tesky 2007 SCC 25, [2007] 2 S.C.R. 267 at para. 2 and 16-19 ; R. v.Cunningham [2011] O. J. No. 3564 (C.A.) at para.33, 37 and 47.