Court File and Parties

Ontario Court of Justice

Date: 2020-11-03

Court File No.: Toronto DFO – 15741/17 – B2

Between:

B.C.J.B. Applicant Father

— And —

E-R.R.R. Respondent Mother

Before: Justice Alex Finlayson

Ruling on 14B Motion dated October 23, 2020

Heard in Chambers

Counsel

Zahra Taseer ......................................................... counsel for the applicant father

Mira Pilch ............................................................ counsel for the respondent mother

Gary Joseph ............................ counsel for the respondent mother in her appeal

Decision

ALEX FINLAYSON J.:

A. Nature of the 14B Motion Before the Court

[1] On September 28, 2020, I released a decision on a motion I heard about a number of issues concerning the parties' child, B.R.M.R. Among other things, I ordered that the applicant father would have decision making authority over B.R.M.R.'s health, as it relates to deciding whether to administer Ontario's existing publicly funded vaccinations to him.

[2] The mother has launched an appeal of my Order to the Superior Court of Justice on various grounds. On October 5, 2020, a copy of a Notice of Appeal dated October 2, 2020 was filed with this Court, although I am now told that it was not filed in the Superior Court until October 15, 2020, after the deadline in rule 38(6) of the Family Law Rules.

[3] On or around October 23, 2020, the mother filed a 14B Motion and the affidavit of a law clerk named Irene Bardakjian[1], sworn October 23, 2020, in this Court. Although the date of November 24, 2020 is already booked in the Superior Court for the hearing of the mother's motion to stay my Order of September 28, 2020, the 14B Motion dated October 23, 2020 in this Court now also seeks a temporary stay of my Order, but pending the hearing of the stay motion in the Superior Court.

[4] The 14B Motion was first brought to my attention on November 2, 2020. The 14B Motion indicates that opposition to it was expected, however I was not given any responding material by the father.

[5] Ms. Pilch is listed as the mother's counsel, both on the 14B Motion and on Ms. Bardakjian's affidavit, so on November 3, 2020, I had the judicial secretary email Ms. Pilch and the father's counsel, Ms. Taseer, to inquire as to the whereabouts of the father's responding material. Ms. Pilch sent an email to the judicial secretary that she was unaware of this 14B Motion. I also learned the father had responded to the 14B Motion by affidavit sworn October 29, 2020, but that was not brought to chambers by Court staff in error. That affidavit has now been brought to my attention.

B. Analysis

[6] This mother's 14B Motion is dismissed for the following three reasons.

[7] First, the motion is opposed. No request was made by counsel for the mother that this motion be argued orally. This is not the type of motion that is properly dealt with by way of 14B Motion. See Rule 14(10) of the Family Law Rules. And even if it were, there is insufficient material or argument before me in the 14B Motion to consider and apply the stay test properly.

[8] Now, I do acknowledge that the Family Law Rules do allow for a stay to be sought either in this Court or in the Superior Court. Rule 38(35) states that a temporary or final order may be stayed on any condition that the court considers appropriate, either by order of this Court or by order of the Superior Court. Likewise, section 74 of the Children's Law Reform Act says that an order under this Part is effective even if an appeal is taken from the order, unless the court that made the order or the court to which the appeal is taken orders otherwise. This implies a power in this Court to stay its own orders.

[9] However, the mother is not actually asking to proceed with a stay motion in this Court. Paragraph 3 of Ms. Bardakjian's affidavit explicitly states that the mother wishes to bring a stay motion in the Superior Court of Justice. What has happened is that the mother is unhappy with the date she was given by the Superior Court.

[10] What the mother's 14B Motion does, in effect, is ask this Court to grant a stay on an interim interim basis until the motion can be heard in another Court, three weeks from now. Counsel gave me no authority for the proposition that a judge of this Court may or should do this, whether under rule 38 of the Family Law Rules, or under rule 1(8) of the Family Law Rules or section 106 of the Courts of Justice Act, all of which are cited in the mother's 14B Motion without elaboration.

[11] Second, even if this Court may do this, I see no urgency or pressing need to proceed in this fashion. While the Notice of Appeal was filed in this Court within days of the release of my decision on September 28, 2020, it was not filed in the Superior Court until October 15, 2020, some 17 days after my decision was released, and 10 days after the deadline set out in rule 38(6) of the Family Law Rules. And it appears that the mother's appellate counsel did not even ask the Superior Court for a date, or propose dates for the stay motion to Ms. Taseer, until October 21 and 22, 2020, some 23/24 days after I released the decision.

[12] According to Ms. Bardakjian's affidavit, Mr. Joseph's office requested dates for a stay motion from the father's counsel on October 21 and 22, 2020, but "did not receive a response", and so she unilaterally wrote to the Superior Court on October 22, 2020 asking for dates. They were then given November 24, 2020 by the family office there.

[13] Ms. Bardakjian's affidavit does not attach any of the correspondence to support the allegation that Ms. Taseer was non-responsive. By contrast, and although this is the mother's appeal, the father states that it was actually his counsel who attempted to obtain Mr. Joseph's availability for the stay motion, and that she did so much earlier. To his affidavit, the father has attached an email from Ms. Taseer to Mr. Joseph dated October 7, 2020, asking Mr. Joseph when he would be ready to proceed, and suggesting that he provide her with his availability.

[14] Additionally, there is no evidence before me that the mother's appellate counsel even took any steps to secure an earlier date for the stay motion in the Superior Court, after being given the November 24, 2020 date, but prior to coming to this Court with the current 14B Motion.

[15] Other than the paragraphs about scheduling, the only other evidence of alleged urgency contained in Ms. Bardakjian's affidavit is a statement to the effect that the issue on the appeal is about vaccination, "[i]t is not like a haircut where the hair will grow back" and if the father vaccinates the child before the stay motion is argued, the appeal will be moot.

[16] By contrast, the father's affidavit of October 29, 2020 states that in his counsel's email of October 7, 2020, the father agreed not to take steps to vaccinate the child. I have reviewed that email, and it is true that Ms. Taseer said this. The father's affidavit also states that he is sourcing different counsel for the appeal, and so perhaps he needs the time between now and November 24, 2020 to do that.

[17] Third, the mother's 14B Motion provides this Court with no information regarding the basis on which the stay should be granted, other than the statement about hair growing back and the alleged mootness of the appeal. This is insufficient evidence/argument to satisfy the stay test on its merits, even on a temporary basis.

C. Conclusion

[18] In conclusion, rule 38(35) suggests that a litigant should choose where to pursue her stay motion. I do not read the rule as allowing her to argue it twice, in both Courts. I have been unable to find any authority (and counsel did not provide me with any) to this effect, or that the lower Court should effectively make an interim interim order because the appellant is unhappy with scheduling in the Superior Court.

[19] If I am wrong in this regard, I nevertheless fail to see how the father caused any of the delay that is alleged, and I fail to see any urgency in the material that would warrant this Court making earlier dates available for the hearing of a stay motion, or otherwise dealing with the stay based on what was put before me, prior to the Superior Court having the opportunity to do so.

[20] If the mother seeks an earlier date for her stay motion based on this evidence, or based on some other evidence of urgency that I was not told about, I suggest that she make her request to the family team leader in the Superior Court in Toronto, who can decide whether she sees a basis to move the already scheduled November 24, 2020 motion date forward.

[21] The 14B Motion is dismissed. If the father seeks costs of the 14B Motion, I will hear brief costs submissions orally when this matter returns before me for the TMC, now scheduled for December 23, 2020.

Released: November 3, 2020

Signed: Justice Alex Finlayson

Footnote

[1] The mother is represented by Mira Pilch in the proceeding before this Court, but by Gary Joseph on her appeal. Ms. Bardakjian is a law clerk in Mr. Joseph's office.