Citation: Bergen v. Sharpe, 2011 ONSC 1930
COURT FILE NO.: DC-10-79
DATE: 2011-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JESSICA ANNE BERGEN
Self-Represented
Applicant (Respondent in motion for leave)
- and -
ROBERT JOHN SHARPE
William H. Abbott, for the Respondent (Moving party in motion for leave)
Respondent (Moving party in motion for leave)
HEARD: October 22, 2010, at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] Robert Sharpe seeks leave to appeal to the Divisional Court from the Order of Snowie J. dated October 7, 2010, which removed sole interim custody of his four year old son, Johnathan Sharpe, from him and gave it jointly to he and his wife, Jessica Bergen, with Johnathan’s residence to alternate between them on a week-about basis, and which required Mr. Sharpe to pay Ms. Bergen set-off interim child support of $1,254.00 per month. Mr. Sharpe also seeks an order staying Justice Snowie’s order pending the hearing of his appeal.
[2] Mr. Sharpe obtained the initial order granting him sole interim custody by alleging, among other things, that Ms. Bergen was mentally ill and that her partner was a dangerous criminal involved in the sex industry. He now complains that the evidence which has emerged, proving his allegations false, do not amount to a material change in circumstances which justified Justice Snowie in changing the status quo.
[3] Mr. Sharpe also complains that Justice Snowie should not have ordered him to pay child support because she had presided three months earlier at the beginning of a Settlement Conference dealing with the issues of spousal support and equalization. That conference was adjourned when it became evident that Mr. Sharpe had not yet delivered his answer to Ms. Bergen’s application for support and had not yet arranged a psychiatric assessment of Ms. Bergen which the court, at his insistence, had ordered her to attend. Mr. Sharpe asserts, however, that before adjourning the Conference, Justice Snowie asked him about the value of his farm and that this should have disqualified her from setting an amount of child support based on facts which included the value of his farm.
BACKGROUND FACTS
a) Parties’ relationship, marriage and separation
[4] Ms. Bergen and Mr. Sharpe began living together in 2002. They had one child together, Johnathan Satori Sharpe, who was born July 4, 2005. They married on December 23, 2005, six months after Johnathan was born.
[5] Mr. Sharpe is a professional horseman who rides and trains show horses. From February to April each year, he travels to Florida for the horse show circuit. During their marriage, he and Ms. Bergen lived on a horse farm in the Guelph area when he was not in Florida.
[6] Ms. Bergen separated from Mr. Sharpe on May 23, 2008, after three years of marriage. She attributes their separation to Mr. Sharpe’s emotional abuse of her. After she and Mr. Sharpe separated, each formed relationships with new partners. Ms. Bergen’s new relationship was with Mark Outwater, a U.S. citizen from Boston, a businessman who owns property in the U.S. Mr. Outwater is a visitor to Canada for purposes of Canadian Immigration law and therefore lives in Canada for less than six months a year.
[7] As Snowie J. noted in her endorsement dated October 7, 2010, by the time the matter came before her on June 14, 2010, the parties had at least 21 orders made by 9 different justices of this Court and two banker’s boxes full of pleadings. It is necessary, in order to put Justice Snowie’s Order in context, to review the proceedings that had led to the matter coming before her on that date.
b) The Initial Interim Custody Order by Belleghem J. dated September 16, 2008
[8] Johnathan continued living with his father after his parents’ separation. The court made an early order, on consent, giving Ms. Bergen access to Johnathan during the week of July 15 to 22, 2008, allowing her to visit him at the farm for two hours a day, two days a week, while Mr. Sharpe stayed away. Following that order, Ms. Bergen visited Johnathan almost daily.
[9] Two months later, Belleghem J. made an order dated September 16, 2008, granting Mr. Sharpe interim custody of Johnathan with generous reasonable access by Ms. Bergen, to include at least three weekly visits of two hours each at Mr. Sharpe’s residence during which Mr. Sharpe was to stay away.
[10] In his reasons, Justice Belleghem made the following findings:
a) Ms. Bergen had had a somewhat troubled history, which had left her with psychological difficulty, treatment for which should be ongoing;
b) If Ms. Bergen was granted custody, she proposed to live with Mr. Outwater and Johnathan in a trailer at a nudist resort in the Guelph area.
c) Mr. Outwater had no connection with Johnathan. Based on the evidence before him, Justice Belleghem concluded that Mr. Outwater had “questionable credentials to qualify as a step-father to Johnathan.”
d) Putting Johnathan in Ms. Bergen’s primary care would increase the risk of flight, which was contrary to Johnathan’s best interests.
[11] Justice Belleghem noted that Ms. Bergen was seeing Johnathan frequently and would be able to continue doing so from the trailer where she and Mr. Outwater planned to live. She was familiar with the farm where Johnathan lived because she had lived there during the marriage, and she was still comfortable enough there to bathe Johnathan and eat meals which Mr. Sharpe prepared when she visited at mealtime. Justice Belleghem also observed that Johnathan now had a routine which was helpful for his development, and he concluded that this should not be disturbed without good reason being shown.
[12] Justice Belleghem stated that Ms. Bergen’s primary reason for asking for a change in the status quo was that there was not sufficient bonding between herself and Johnathan under the prevailing access arrangement. He was not satisfied that this was the case and concluded that Ms. Bergen’s real reason for asking for a change was its inconvenience, which he said had resulted from her own decision to leave her marriage.
[13] Justice Belleghem relied in part on an affidavit from Ms. Bergen’s mother, who described her daughter as being “on a very destructive path”. She asserted that “If Johnathan is placed with Jessica he will not be given the parental guidance he needs to become a productive member of society.” She added, however, that she was not discounting Mr. Sharpe’s shortcomings as a parent, either.
[14] Justice Belleghem also relied on an affidavit from Mr. Sharpe’s eldest son from his previous union, who “addresses from a first-hand perspective what it is like to have been raised as a son by Johnathan’s father. It challenges almost all of the concerns raised by Johnathan’s mother as to whether Johnathan would likely thrive in his father’s care.” He also relied on a favourable letter from Mr. Sharpe’s first wife, who had known him for 32 years.
[15] Justice Belleghem was satisfied from the material before him that there would be a real flight risk unless Mr. Sharpe was given interim sole custody. This appears to have been his principal reason for making the order he did.
c) Order of Seppi J dated April 14, 2009
[16] Ms. Bergen soon experienced problems exercising access and brought a motion to vary Justice Belleghem’s order. The Office of the Children’s Lawyer (an order had previously been made requesting the OCL to intervene and they had accepted the assignment) was not present, without explanation, at the return of the motion on April 14, 2009. Justice Seppi adjourned the motion to a Case Conference a week later at which the Children’s Lawyer was to attend. She directed that, in the interval, Ms. Bergen was to have access to Johnathan on three days at an access centre or local community centre where Mr. Outwater was not to be present, to be supervised by Johnathan’s nanny, who was to remain far enough away not to interfere with her access. She directed that if the matter was not resolved at that time, the motion would be heard on April 28, 2009.
[17] On April 21, 2009, the parties attended court with a representative from the Office of the Children’s Lawyer. The Children’s Lawyer reported that their report would be issued on May 18, 2009, and accordingly, Ms. Bergen’s motions for interim spousal support and to have Mr. Sharpe found in contempt for interfering with her access were adjourned to May 11, 2009, with all other motions being adjourned to a settlement conference to be held as soon as possible after May 18th.
[18] The Children’s Lawyer’s Report, which was issued on May 12, 2009, recommended that Mr. Sharpe have sole interim custody of Johnathan and that Ms. Bergen submit to a psychiatric and/or psychological assessment.
d) Orders of Herold J. dated Sept. 8 and Nov. 30/Dec. 1, 2009
[19] Ms. Bergen’s motions ended up being postponed and on August 27, 2009, she was charged with assaulting Mr. Sharpe. Her sentence was suspended and she was placed on probation until October 18, 2010, with a term prohibiting her from having contact or communication with Mr. Sharpe in the absence of a family court order specifying her access to Johnathan.
[20] On September 8, 2009, Herold J. ordered, on consent, that once Family and Children’s Services of Guelph and Wellington County had completed their investigation of the incident which had been reported to them on August 28, 2009, their report and notes were to be released to both parties. All other issues in Ms. Bergen’s motions were adjourned to a Settlement Conference on September 29, 2009, at which a later date was to be fixed for the hearing of a motion.
[21] On December 1, 2009, Herold J. made an order requiring Mr. Sharpe to disclose information and deliver household contents that Ms. Bergen had requested. He also granted Mr. Sharpe leave to take Johnathan to Florida from January 7 to April 30, 2010, and increased Ms. Bergen’s spousal support so that she could arrange accommodation in Florida and exercise unsupervised access to Johnathan there. Among the terms he imposed for access was that Mark Outwater not be present for access visits and that if Mr. Sharpe scheduled a defence medical assessment (psychiatric, psychological or both) of Ms. Bergen, she was to co-operate with the scheduling and attend the scheduled appointments.
[22] A dispute later arose over the defence medical assessments when Mr. Sharpe caused some 2,500 pages of documents to be delivered in advance to Dr. Monik Kalia, the psychologist who was to perform the psychological assessment, contrary to Justice Herold’s suggestion that the assessors have no communication in advance with the parties or their lawyers, and when Dr. Julian Gojer, who was to perform the psychiatric assessment, refused to have it video-taped, as Ms. Bergen had demanded.
[23] Ms. Bergen brought a motion to revoke Justice Herold’s order directing her to attend for the assessments and to have Mr. Sharpe found in contempt for interfering with her access to Johnathan. On May 4, 2010, Belleghem J. dismissed Ms. Bergen’s motion to have Mr. Sharpe found in contempt and directed her to submit to the assessments without having them recorded. He directed that Dr. Kalia not conduct the psychological assessment but permitted Dr. Gojer to conduct the psychiatric assessment. He also ordered Ms. Bergen to produce an earlier assessment which she had obtained in Buffalo, New York.
e) Order of Snowie J. dated June 14, 2010
[24] A Settlement Conference on the issues of spousal support and equalization was scheduled to take place on Monday, June 14, 2010 and a Settlement Conference on the issues of custody and access was to take place on July 5th. However, at that point:
i) Mr. Sharpe had sworn a new affidavit the previous Thursday (June 10, 2010) alleging that Ms. Bergen had “serious psychological and psychiatric problems and issues.” His counsel had not yet arranged the defence psychiatric and/or psychological assessments which Justice Herold had ordered Ms. Bergen to attend.
ii) Mr. Sharpe had yet to deliver his answer to Ms. Bergen’s application for spousal support, which was scheduled to be heard on June 22, 2010.
[25] Justice Snowie’s endorsement on June 14, 2010, stated as follows:
Settlement Conference date - held:
This file is ‘out of control’ totally. There have been at least 21 orders made by at least 9 different judges of this Region. The nonsense must stop and as such I am seizing myself of this Settlement Conference.
This matter will require a special date to continue this Settlement Conference [on the issues of spousal support and equalization] and I am suggesting the 26th or 27th of August or any other date in August. I have suggested the 26th or 27th as those are currently TBA (To be Arranged) dates on my schedule. I leave the actual scheduling to the Regional Office and ask that [Senior Regional] Justice Van Melle be consulted please.
The motion that is returnable on the 22 June/10 is adjourned to be added to the list on this file for the long motions date of August 23/10 (full day). I am content to hear this motion if Justice Van Melle decides that I should also case manage this file – Both sides are requesting case management which I believe should be done.
The Settlement Conference presently scheduled for July 5/10 on the issues of “custody and access” is adjourned to the continuation of this settlement conference on the aforesaid referred to date in August before me. The reason that this date must also be adjourned to August is that the husband has made serious allegations about the wife’s mental ability and capacity despite the mother’s evidence to the contrary. As such, the husband is obtaining a defence psychological/psychiatric assessment. 2 days are scheduled in the next 10 days to complete the same. It is important to have the results of this to make headway on settlement. Counsel for the husband will undertake to have this Report by August 1, 2010 and have it served and filed.
[26] Snowie J. then set out a timetable by ordering as follows:
a. Mr. Sharpe would deliver his answer to Ms Bergen’s application for spousal support motion by June 21, 2010, and Ms. Bergen would deliver her reply by July 6, 2010.
b. The motion for spousal support was adjourned from June 22 to August 23, 2010, when it would proceed as a long motion. Ms. Bergen would deliver her affidavit material on the motion by June 30, 2010, Mr. Sharpe would deliver his responding material by July 15, 2010, and Ms. Bergen would deliver her reply material, if any, by July 30, 2010. Cross-examinations would be completed by August 10 and both parties would deliver factums by August 16, 2010.
c. The Settlement Conference on custody and access was adjourned from July 5, 2010. Mr. Sharpe’s counsel would undertake to have the defence psychological/psychiatric assessment report served and filed by August 1, 2010, and the Court would notify the parties of a court date in August when a settlement conference would take place before her. New Settlement Conference Briefs would be filed 7 days before the return date for the Settlement Conference.
[27] Justice Snowie ordered, with reference to the Settlement Conference on support and equalization that was to have proceeded before her that day,
The property and financial support Settlement Briefs are to be retained in the file – These need only be up-dated for the August date, however there must be new Settlement Conference Briefs on the issues of custody and access filed 7 days prior to the Settlement Conference return date.
f) Order of Snowie J. dated Oct. 7, 2010
[28] It is not in dispute that the Settlement Conference on the issue of spousal support and equalization, which Snowie J. had proposed she conduct on August 26 or 27, 2010, did not proceed before her on those dates and that the Settlement Conference on the issues of custody and access, which she had proposed that she conduct on some other date in August, also did not proceed before her. Instead, she heard Ms. Bergen’s motion for custody and access as a long motion on October 4 and 5, 2010.
[29] Between June 14 and October 4, 2010, a further dispute arose between the parties concerning the defence psychiatric assessment:
a) The defence psychologist, Dr. Pollock, completed his assessment on June 23 and issued his report on July 12, forwarding it to Mr. Sharpe’s solicitor on July 13, 2010.
b) Mr. Sharpe’s lawyer and his assistant were apparently out of the office, on vacation, from July 10 to July 19, 2010, and did not arrange for the defence psychiatric assessment by Dr. Gojer until July 27, 2010.
c) Mr. Sharpe’s lawyer wrote to Ms. Bergen on August 9, 2010, proposing that she attend for Dr. Gojer’s assessment on August 16, 2010. She replied the following day, noting that Snowie J’s endorsement had permitted Mr. Sharpe to arrange the assessment within ten days after June 14, 2010, and had required Mr. Sharpe’s lawyer to have the report served and filed by August 1, 2010. She noted that an examination on August 16, 2010 would not permit that.
d) Ms. Bergen noted that the defence psychologist, Dr. Pollock, had concluded that “From a psychological perspective, there appears to be no compelling reason why Ms. Bergen would be unable to parent her son.” Based on the foregoing, Ms. Bergen took the position that the leave which Mr. Sharpe had been given on December 1, 2009, to conduct a defence psychiatric assessment had terminated after eight months, on August 1, 2010, and she therefore refused to attend.
[30] On October 7, 2010, Snowie J. refused Mr. Sharpe’s request for an adjournment of the motion to require Ms. Bergen to attend for a psychiatric assessment by Dr. Gojer. After observing that the defence psychological assessment was consistent with the psychological and psychiatric assessments that Ms. Bergen had obtained, which concluded that there was nothing in Ms. Bergen’s mental status that would prevent her from conforming to accepted standards of social behaviour and effectively meet the challenges of parenthood, Justice Snowie held that Mr. Sharpe had failed to comply with the timetable for an assessment which she had set in June and had thereby forfeited his right to the assessment.
[31] Justice Snowie proceeded to hear the motion for custody and access over the next two days. She issued an order on October 7, 2010, giving the parties joint custody and directing that Johnathan alternate his residence between them on a “week about” basis.
[32] The Order provides that the parties are to consult on major decisions concerning their child’s welfare - they are to communicate by means of a communication book - and if a consensus cannot be reached, Ms. Bergen is to make the final decision. Ms. Bergen is to have primary responsibility for liaison with the child’s doctor, dentist, and school, but each party has the right to contact the child’s health and education providers and obtain information from them and to attend all medical appointments, school related activities and sports activities.
[33] The Order permits Ms. Bergen to spend her time with the child at her home at the Ponderosa Nature Resort and to have her common-law partner, Mr. Mark Outwater, present during access times. The child is to remain in attendance at his school in Aberfoyle and reside full-time with Ms. Bergen at times when Mr. Sharpe is in Florida. Neither party may leave the Province of Ontario with the child without a court order or the written consent of the other, although reasonable requests for vacations of no longer than two weeks are not to be unreasonably refused.
[34] As corollary relief, Justice Snowie ordered Mr. Sharpe to pay child support in the amount of $1,254.00 per month based on an imputed income of $150,000.00.
ISSUES
[35] Mr. Sharpe’s application for leave to appeal raises the following issues:
a. Did Snowie J. err in changing the status quo that had prevailed for over two years in Johnathan’s custody and access without a material change in circumstances and, in doing so, fail to consider the earlier interim orders in the case?
b. Did Snowie J. err in deciding the contested issues of custody/access and child support after presiding at a Settlement Conference where those issues had been dealt with, contrary to Rule 17(24) of the Family Law Rules?
POSITIONS OF THE PARTIES
[36] Mr. Sharpe submits that there is good reason to doubt the correctness of Snowie J.’s decision, which he says is contrary to other decisions of the court holding that the status quo in a child’s custody and access ought not to be changed without a material change in circumstances and which is also contrary to Rule 17(24) prohibiting a judge who has presided at a settlement conference on an issue from hearing a motion on the same issue.
[37] Mr. Sharpe submits that the proposed appeal raises important issues concerning the best interests of children as well as an important procedural issue concerning the limits of a conference judge’s jurisdiction.
[38] Ms. Bergen submits that Mr. Sharpe has not pointed to any court decisions that conflict with the principles Justice Snowie applied in her decision nor shown any good reason to doubt the correctness of her decision. She notes that she and Mr. Sharpe have been separated since 2008 and says that it is in their interests to move the proceeding forward to resolution by trial or settlement and that an appeal from Justice Snowie’s interim order would not assist the parties to this end.
ANALYSIS AND EVIDENCE
a) Standard of Appellate Review – Motion for Leave to Appeal
[39] The test for granting leave to appeal an interlocutory order in a family law proceeding is the same as the test in civil proceedings. Rule 38(1) of the Family Law Rules[^1] provides that Rule 62 of the Rules of Civil Procedure[^2] governs a motion for leave to appeal from an interlocutory Order.
[40] Under Rule 62, the onus is on Mr. Sharpe to establish either that the Order is in conflict with a decision of this or another court and that it is desirable that leave be granted, or that there is good reason to doubt the correctness of the Order and that the appeal entails matters of importance.[^3]
[41] A decision will be said to conflict with another not merely when different results are achieved, but when the courts have proceeded on different principles.[^4] That is, it is not enough to demonstrate that two courts have exercised their discretion to produce different results. It is necessary to demonstrate a difference in the principles chosen as a guide to the exercise of such discretion.[^5]
[42] The wording of Rule 62.02(4)(a)(b) makes it clear that the Legislature’s intent was to discourage appeals from interim orders except in extraordinary circumstances. The presumption is that leave is not to be granted unless the Appellant can meet one of the two tests, each of which requires the satisfaction of two distinct criteria.[^6]
[43] To succeed under the second branch of Rule 62.04(4)(b), Mr. Sharpe must satisfy the court that there is reason to doubt the correctness of Justice Snowie’s order. He need not establish a probability of success on the appeal, as requiring him to do so at this stage would be to prejudge the appeal.[^7] However, the court must be satisfied that the correctness of the order is open to very serious debate.[^8]
[44] In addition, Mr. Sharpe must satisfy the court that there are matters involving general public importance relevant to the development of the law and the administration of justice, as opposed to merely being of particular importance only to these litigants.[^9]
[45] The Ontario Divisional Court has affirmed that an appellate court will not interfere with an interlocutory order involving the exercise of discretion unless it is clearly and demonstrably wrong. As a general rule, appeals from interlocutory orders in family matters are to be discouraged. They cause additional expense to the parties and delay the ultimate resolution at trial.[^10]
[46] These principles are to be taken into account in deciding whether the interests of justice require that leave to appeal an interim order should or should not be granted. Unlike a trial, where an error can only be rectified by appeal, an error made in an interim proceeding can be rectified by the trial decision.[^11]
b) Material Change in Circumstances
[47] Section 29 of the Children’s Law Reform Act requires a material change before a court can make an order varying custody or access:
- A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.[^12]
[48] The Ontario Court of Appeal has recently affirmed that a material change of circumstances is a prerequisite to changing a custody award. In Persaud v. Garcia-Persaud, the motion judge varied the child’s primary residence from the mother to the father. The mother’s appeal was allowed and the order set aside. The Court of Appeal held that the motions judge did not have jurisdiction to vary the existing order. It held that jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous court order was made.[^13] The Court stated:
As this court has made clear, jurisdiction to vary a custody and access Order is dependent on an explicit finding of a material change in circumstances since the previous Order was made. If an Applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman, (2008), 2008 ONCA 485, 52 R.F.L. (6th) 239 (ON. C.A.). The matter is jurisdictional and a court must make a finding of a material change of circumstances even when, as here, both parties request a variation.[^14]
[49] The Supreme Court of Canada in Gordon v. Goertz held that a material change in circumstances is one which:
amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;
materially affects the child; and
was either not foreseen or could not have been reasonably contemplated by the judge making the original order.[^15]
[50] Generally speaking, the status quo should be maintained pending trial. If there is a material change in circumstances, there should be facts supporting a conclusion that the status quo is unsatisfactory or that the advantages of changing custody outweighed the disadvantages of changing the status quo to support a variation.[^16]
[51] Snowie J. found two material changes in circumstances since the status quo of custody and access had been established. These consisted of the following:
a. the new evidence regarding (1) Ms. Bergen’s mental health; (2) Mr. Outwater’s criminal record; and (3) the flight risk that would be posed by Ms. Bergen having custody of Johnathan; and
b. the new evidence concerning the quality of care each of the parents had provided to Johnathan in the intervening three years.
[52] Justice Snowie stated:
The present situation with the father having sole custody has not been in the child’s best interests and I find there is now further and better evidence before this court and that this evidence has created a material change in circumstances. There was no reasonable way that this court could have known the truth of this situation when the original order was made. The court had to allow time to investigate the allegations of the father. [Emphasis added]
(i) Disproved allegations of Ms. Bergen’s mental illness
[53] Snowie J correctly observed that the “status quo” was the result, in part, of Mr. Sharpe’s allegations that Ms. Bergen suffered from mental illness, which he insisted he be given the opportunity to substantiate by psychological and psychiatric assessments. She stated in her reasons:
[25] The Office of the Children’s Lawyer Report states, ‘Jessica’s mental health status remained unknown’ at that time (May 2009). This is no longer the case.
[26] The issue of the mother’s mental health has been cleared up through the 2 psychological assessment reports and the 1 psychiatric report/assessment now filed with this court. There are no issues of concern raised in the 3 assessments with respect to the mother’s mental health status. These false allegations were all part of the scare tactics of the respondent to manipulate this court. Unfortunately, those scare tactics have led to a status quo that should not exist and the best interests of the child have not been served. Every child has a right to have a relationship with his/her parents unless those parents create a risk. There is no risk here with the mother based upon the evidence.
[54] The transcript of Justice Belleghem’s reasons dated September 16, 2008, supports Justice Snowie’s conclusion that Justice Belleghem had relied on Mr. Sharpe’s allegations, as reflected in the report of the Office of the Children’s Lawyer, in granting interim custody to him. As noted above, Justice Belleghem stated: “Mother has a somewhat troublesome history that has left her with psychological difficulties, treatment for which should be ongoing.” (Transcript of reasons, p. 2)
[55] The new evidence supported Justice Snowie’s conclusion that the allegations of Ms. Bergen’s mental illness had been disproved. This evidence consisted of the psychological and psychiatric assessments that Ms. Bergen had tendered and the psychological assessment that Mr. Sharpe had tendered:
a. Dr. Brian S. Joseph, a psychiatrist consulted by Ms. Bergen stated in his report dated September 11, 2009:
I feel Mrs. Bergen, for all intents and purposes, is quite credible … While Mrs. Bergen has had emotional difficulties in her life, that is, having been sexually abused and having had an emotionally and somewhat physically abusive mother, she seems to have weathered those circumstances without significant effect. I do not feel she demonstrated any kind of psychopathology.
b. The Psychological Services Center at the University of Buffalo, in a report dated August 5, 2009, stated, based on the information Ms. Bergen had provided:
Given the results of the assessment, there is no indication of any psychopathology in Jessica’s present mental health condition. Notably, it seems, Jessica has done remarkable work for herself to cope with a difficult and abusive relationship history. Jessica has shown fortitude, resourcefulness and satisfactory self-care by tapping into a myriad of community resources and by persisting in the face of adversity. [Emphasis added]
c. Finally, Dr. Pollock was retained by Mr. Sharpe’s counsel to conduct a psychological assessment of Ms. Bergen. He is a registered psychologist licensed to practice in the Province of Ontario and an Assistant Professor in the Department of Psychiatry, University of Toronto. His clinical practice includes personality assessment, neuropsychological evaluation, counselling and psychotherapy, with a principal interest in forensic evaluation for criminal and civil proceedings. In his report dated July 12, 2010, he stated:
In conclusion, from a psychological perspective, there appears to be no compelling reason why Ms. Bergen would be unable to parent her son. Specifically, there are no indications from the psychological assessment findings of intellectual limitations, mental illness, severe personality pathology or other psychological conditions that would prevent Ms. Bergen from conforming to accepted standards of social behaviour and effectively meeting the challenges of parenthood. [Emphasis added]
(ii) Disproved allegations of Mr. Outwater’s criminality
[56] Snowie J observed that the “status quo” was also the result, in part, of Mr. Sharpe’s allegations that Mr. Outwater represented a risk to Johnathan. She stated in her reasons:
[18] … He accused Mr. Outwater of being a criminal and being involved in the sex industry. There is no evidence as to the truth of these allegations at all and they are denied absolutely by Mr. Outwater.
[57] Justice Snowie’s conclusion that the status quo was the result, in part, of Mr. Sharpe’s allegations concerning Mr. Outwater is supported by the transcript of proceedings on September 16, 2008, in which Justice Belleghem stated: “Her boyfriend has no connection with Johnathan and from the evidence before me, he has questionable credentials to qualify as a step-father to Johnathan.”
[58] The new evidence supported Justice Snowie’s conclusion that the allegations concerning Mr. Outwater had been disproved. Justice Snowie stated, in this regard:
[19] The so-called criminal record of Mr. Outwater is approximately 20 years old. His previous convictions did not involve any minors. He lost his driver’s license for too many tickets. He was pulled over for speeding and running a red light. He was found to be under the influence of alcohol and was carrying a restricted weapon, nunchucks. He explained that he was taking karate lessons at the time and used them in his classes. In 1992, he was charged with having sexual relations with his girlfriend in a public parking lot. In 1997, he had a conviction for a health violation. He had purchased a property with lead paint.
[21] The Office of the Children’s Lawyer investigated and met with Mr. Outwater. They found him to be “pleasant and cooperative” during their investigation in 2008-2009. They found that his past, in their opinion, did not pose a risk to Johnathan (page 12 of their report). The respondent has “made hay” about previous court orders ordering Mr. Outwater not to attend during access visits. However, the history of this term is not as the respondent would want the court to believe – “risk”. Rather, the Office of the Children’s Lawyer recommended that Mr. Outwater not be present during access only because the child and mother had had a disruption of visits and needed some time alone “to focus on each other during regular access” at that time.” This provision has passed from order to order without any “risk” ever being established. In fact, this term is based upon the “without prejudice” order of Seppi J. dated April 14, 2010.
(iii) Diminished flight risk posed by Ms. Bergen
[59] Justice Snowie’s conclusion that the status quo was the result, in part, of Mr. Sharpe’s allegation that Ms. Bergen was a flight risk is supported by the transcript of proceedings on September 16, 2008, in which Justice Belleghem stated: “Putting Johnathan in her primary care would, in my view, increase the risk of flight, which would be contrary to Johnathan’s best interests.”
[60] The new evidence supported Justice Snowie’s conclusion that the flight risk had significantly diminished in the intervening years. Justice Snowie stated, in this regard:
[22] The respondent has used other “scare tactics” with this court as well. He alleged that the applicant was a “flight risk” with the child Johnathan. She is an American citizen. She has certainly proven over the last 2 years that she is not a flight risk with the child. She purchased a permanent, 2 bedroom trailer in the Ponderosa Nature Resort in 2008-2009. She continues to reside there with no intention of moving out of the area. Her status now in Canada is that of a permanent resident and therefore she is now able to work. She is presently unemployed as she has spent so much time trying to fight the “shadows” (allegations) in this case. The applicant produced into evidence a glowing letter from her part-time employer – the Guelph Saultos Gymnastic Club where she worked from September 2009 to June 2010, as a coach. She was described as “reliable, organized, with a good ability to work with others (parents, children and staff), personable, honest and has a positive effect upon the children she works with.” She has care d for more than 150 children as a coach recently. She hopes to return to this work after this custody/access court motion has been completed.
(iv) Care given by the parents to Johnathan since 2007
[61] Snowie J.’s conclusion that the care which each of the parents had given to Johnathan since the court granted Mr. Sharpe interim custody of him amounted to a material change in circumstances was also supported by the evidence before her. Justice Snowie stated, in this regard,
[27] The applicant expressed a number of concerns about the respondent’s foremost interest being in having power and control (her words were: “punishing her”) rather than in this child’s welfare. Many incidents have been extremely frustrating and unnecessarily upsetting to the mother. They appear to have been more about “arm flexing” than the child’s best interests. I agree. There have been incidents involving delayed dental treatment, the improper installation of the car seat for the child, inappropriate caretakers for the child, school absences and lateness, and a negligent second degree sun burn. The applicant has had to send up to 18 to 24 e-mails on several occasions and regularly bring on motions to get corrective action on the part of the respondent, whose response has been that he has custody and will decide these issues himself without her input. For example, it is clear that the applicant has fought an uphill battle with the respondent to secure proper dental treatment in a timely manner for the child despite the child’s complaints that he had mouth pain. After having to resort to a court motion to secure dental care for the child (the respondent refused to allow the applicant to secure the same), the child finally attended the dentist with the respondent. It was then learned that 30% of the child’s 20 baby teeth were in need of fillings. One tooth needed to be extracted and another tooth had to have a root canal procedure performed on it. Letting a child’s dental health decline to this degree is nothing short of neglect.
[31] The father has employed multiple caretakers for the child since December 1, 2009 (10 months). They are: (1) Courtney Atkinson; (2) Vicki Knight; (3) Ann McArthur; (4) Danny Greatrix
[32] This was not in the child’s best interest and the child should have been cared for by his mother.
[33] The father has continually refused, despite a court order, to share information about the child with the mother. The mother sent 17 e-mails trying to obtain information about her son’s caretakers from the respondent. He has repeatedly refused to disclose who is caring for their child. When the applicant has had concerns about persons that the respondent has allowed the child to be cared for and transported by, the respondent has ignored her. The applicant cited the case of Ms. Claire Bennett, who the respondent denied was unstable. The respondent denied that she had serious problems (cutting herself and drug addiction) to this court in his sworn affidavit material. Ms. Bennett committed suicide three months after the respondent told this court that she was a qualified and stable person to care for and transport the child.
[34] It took the applicant 2 months of e-mails to get the respondent to properly install the child’s car seat in his vehicle. This should never have even been an issue for a truly concerned father.
[62] With regard to Ms. Bergen’s efforts since the court granted interim custody to Mr. Sharpe, Justice Snowie stated:
[28] The applicant has done everything this court has asked of her and more. She has taken a parenting course. Mr. Outwater also took the course. The applicant completed 2 psychological and 1 psychiatric assessments. She even went to Florida two years ago for three months and lived in a tent (she had no money) in order to continue her access regularly with her son when the respondent took the child to Florida for the three month winter horse show in Wellington.
[63] I agree with Justice Snowie’s conclusion that the evidence before her demonstrated a material change in circumstances that justified changing the status quo established, based on Mr. Sharpe’s allegations, by Justice Belleghem’s earlier order. Justice Snowie correctly concluded:
[30] There have been serious changes in the condition, means, needs and circumstances of the child and/or the ability of the parents to meet the child’s needs. These material changes have had effects on the child. There was no reasonable way that this court could have known the truth of this situation when the original order was made. The court had to allow time to investigate the allegations of the father.
c) Rule prohibiting settlement conference judge from hearing motion on the same issue
[64] Mr. Sharpe concedes that this Court could grant leave to appeal on the issue of child support without granting it on the issue of custody and access. In Bigley v. Sanders,[^17] Glass J. granted leave to appeal on one issue alone (whether the plaintiffs could claim punitive, aggravated and/or exemplary damages in the action). The balance of the motion for leave to appeal was denied. Justice Glass held that there was no reason to doubt the correctness of the motion judge’s finding that a trial was needed on the issue of spoliation of evidence nor was there a conflicting decision on that issue. In St. Elizabeth Home Society v. Hamilton (City),[^18] the motion judge had allowed the plaintiff to amend the statement of claim to add two new claims (defamation and negligence). Leave to appeal was granted with respect to the defamation claim, as the case law suggested that defamation claims need to comply with particular pleading requirements. Leave to appeal the non-defamation claims and the costs order was denied. Finally, in Heward v. Eli Lilly & Co.,[^19] the court granted leave to appeal to the Divisional Court on only some grounds of appeal. Justice Lederman considered Rule 62.01(4) of the Rules of Civil Procedure for each ground in determining which grounds to grant leave to appeal on.
[65] Based on the foregoing, I will proceed to consider separately whether leave should be granted on the issue of child support alone. Mr. Sharpe’s complaint on this issue is that Justice Snowie had previously presided at a Settlement Conference which dealt with his income, which should have precluded her from making an order for child support based, in part, on a finding as to his income.
[66] Rule 17(24) of the Family Law Rules provides that a judge who conducts a settlement conference about an issue shall not hear a motion or trial of the same issue. This is not an altogether simple Rule to apply. One principle underlying the Rule is the right to trial before an impartial adjudicator, which is a fundamental principle of justice. As Glithero R.S.J. stated in Children’s Aid Society of Brant v. R. (S.C.K.M.), it is not a mere irregularity that the Court can dispense with in an exercise of discretion under Rule 1(8) of the Family Law Rules:
- The various Family Law Rules seek to address many different types of concerns and goals. In my opinion, Rule 17(24) reflects a basic core value in our justice system. The right to trial before an impartial adjudicator has long been a principle of fundamental justice, and is now enshrined in section 7 of the Charter of Rights. The Charter applies to children protection cases. It cannot be swept aside as an irregularity.[^20]
[67] Another principle that underlies the prohibition in Rule 17(24) is that what is said at a settlement conference is privileged and may not be used as evidence at a later hearing. In the present case, Mr. Sharpe asserts that before Justice Snowie adjourned the Settlement Conference on spousal support and equalization on June 14th, she asked him a question about the value of his farm and he answered the question. She argues that she later relied on his answer at the motion on custody and access when making a finding as to his income for the purpose of deciding the amount of child support he would be ordered to pay.
[68] Ms. Bergen points out that Mr. Sharpe’s Settlement Conference Brief dealt with equalization of net family property and spousal support, not child support. She asserts that there was no lengthy discussion of support issues on June 14th. Her request for spousal support was minimal, a hundred dollars above the amount Justice Herold had ordered - $745.00 instead of $650.00. She states that there was no lengthy discussion about income, only about property.
[69] It is not a sufficient answer to Mr. Sharpe’s objection that the legal issues that were before Justice Snowie at the Settlement Conference on June 14th were spousal support and equalization and the issue that was before her at the motion on October 5-6 was child support. While it is true that the ultimate legal issues were different at the two hearings, the scope of Rule 17(24) is broader than to preclude a judge who presides at a settlement conference from hearing a motion only when the legal issues at the two hearings are the same.
[70] In the present case, the amount of child support payable by Mr. Sharpe was based on the table in the Federal Child Support Guidelines. The table amount was based on Mr. Sharpe’s and Ms. Bergen’s respective incomes. There was no dispute as to Ms. Bergen’s income. The amount was therefore determinable based on the income imputed to Mr. Sharpe. This was a factual issue upon which both the legal issue of spousal support, which was before Justice Snowie at the Settlement Conference on June 14th, and the legal issue of child support, which was before her at the motion on October 5-6, 2010, depended. Accordingly, if there was evidence on the issue which Justice Snowie heard at the Settlement Conference, and particularly if it pre-disposed her to a conclusion about Mr. Sharpe’s income, the Rule should have precluded her from relying on it at the motion on October 5-6.
[71] This broad interpretation of Rule 17(24) is supported by Glithero J.’s decision in Children’s Aid Society of Brant v. R. (S.C.K.M.). He held that evidence that the trial judge heard at a settlement conference with respect to the quality of care the mother had given to one of her children precluded the judge from hearing a later motion where the issue was the quality of care she gave to her other two children. He stated:
- …Obviously, the ability of the appellant mother to appropriately care for the child H was relevant to her ability as a mother in respect of the two children in this appeal. In respect of the child H there is an allegation that the child may well suffer from fetal alcohol syndrome as a result of the appellant’s alleged alcohol abuse during pregnancy. While that settlement conference with respect to the child H resulted in a consent order, it was on the basis of materials filed and agreed upon at the settlement conference. In my opinion the involvement of the trial judge in this settlement conference in respect of another child of the same mother, the appellant, with respect to her parenting abilities during a period of time relevant to the children in this appeal also contributes to a reasonable apprehension of bias in the eyes of that notional reasonable and fair minded citizen in possession of all the relevant facts.[^21] [Emphasis added]
[72] It is also clear from the record in the present case that the Settlement Conference on spousal support and equalization began on June 14, 2010. This is clear from Justice Snowie’s endorsement, which states that the Settlement Conference would “continue” before her on a later date.
[73] It is also clear from the record that the conference did not proceed very far before it was adjourned. It was not ready to proceed because Mr. Sharpe has not delivered his answer on the issues of spousal support and equalization. This is why Justice Snowie fixed a timetable that provided for him to deliver his answer before the conference on those issues resumed.
[74] Mr. Sharpe has not satisfied me that Justice Snowie relied on anything he said on June 14 when making her order for child support on October 7th. He has not tendered a transcript or any other evidence of what was said at the conference. That is not the end of the matter, however. A similar situation prevailed in Children’s Aid Society of Brant v. R. (S.C.K.M.). In that case, Justice Glithero observed:
- While the record before me does not contain a transcript or any other description of the contents of the settlement conference, I take into account that Family Law Rule 17(5) mandates that settlement be explored, and that the settling or narrowing of issues is to be explored.
[75] In Children’s Aid Society of Brant v. R., however, the judge’s participation in the earlier settlement conference was only one of several facts which Justice Glithero found combined to create a reasonable apprehension of bias, not least of which was the fact that the motion judge had remarked in his reasons that “this Court is all too familiar with Ms. R’s successes and failures”, implying that the evidence he had heard at the earlier conferences was influencing his decision at the motion. Justice Glithero concluded, based on all of the facts:
- In my opinion, the involvement of Justice Edward, looking at the matter as a whole, gives rise to a reasonable apprehension of bias. Specifically:
a. his involvement in the case management of the Society proceedings in respect of this appellant and her children throughout much of their lives;
b. in particular, his participation in a settlement conference directly concerning these two children, in contravention of rule 17(24);
c. his involvement in the settlement conference in respect of her younger child, H, at least in spirit contravening rule 17(4), and occurring shortly before the impugned trial;
d. and coupled with his “all too familiar” remark during the course of reasons.
[76] In the present case, the situation is very different:
a. The Settlement Conference on June 14th concerned issues of spousal support and equalization and was discontinued at an early stage, without Snowie J. making any finding on any substantive issue, including Mr. Sharpe’s income.
b. The briefs for June 14th did not deal with child support, only with equalization and spousal support. In any event, there is no evidence that Justice Snowie ever looked at the briefs. She held that “the property and financial support Settlement Briefs are to be retained in the file – these need only be up-dated for the August date.”
c. The Motion on October 5-6 concerned the issue of custody and access. It was only upon resolving these issues that Snowie J., in a single paragraph and applying the mathematical formula in the Federal Child Support Guildelines, made a finding as to Mr. Sharpe’s income.
d. Snowie J. had all the information which she relied on in support of her finding as to Mr. Sharpe’s income in the court record and, in particular, in the Financial Statements and affidavits which had been filed.
e. Snowie J. did not make any remark suggesting that she was relying on anything said at the discontinued Settlement Conference on June 14th.
[77] I find no reason to conclude that Justice Snowie’s decision on child support violated “the spirit” of Rule 17(24) or to doubt its correctness on this basis. Justice Snowie began the Settlement Conference on June 14th only until she realized that the parties were not ready and that what was needed was a timetable that they could follow to ready themselves for the conference.
[78] The evidence that Justice Snowie relied on in setting the amount of child support to be paid by Mr. Sharpe is set out in paragraph 23 of her endorsement dated October 7, 2010. She stated:
[23] The respondent shall pay to the applicant the sum of $1,254.00 for interim child support of the one child of the marriage, commencing on October 8, 2010, and payable on the 8th day of each and every month thereafter, pending further order of this court. I am exercising my discretion in making this award of child support payable to the mother as there is a huge discrepancy in the lifestyles of the parties. The mother is living on modest spousal support and in a trailer. The father has a horse farm. His gross income in 2009 was $532,511.00. For income tax purposes he had negative income of -$47,585.99. His 2009 Income Tax Return is the most up-to-date information about his income. In 2009, the father deposited $761,646.00 into his personal account. His personal monthly expenses on his January 27, 2010 sworn Financial Statement are $8,497.75. This figure does not include 81% of his housing costs being approximately $11,000.00 per month that is paid through his company. The respondent presently has a Farm Credit Loan of $1,271,364.00 and a second mortgage of $64,445.00. It is clear that no lending institution would grant this type of credit if his actual income was -$47,585.99 per year. This horse farm is a successful business, but without a careful analysis under oath of his financial statements, it is impossible to accurately calculate exactly what write-offs would and would not be allowed for child support calculation purposes. I am prepared to impute a reduced income amount of the gross income for interim purposes at $150,000.00. I believe this to be reasonable in all the circumstances.
[79] All of the facts which Justice Snowie relied on in coming to her decision on child support were contained in the evidence filed on the motion before her and in the continuing record of the proceeding. She did not rely on either the contents of the Settlement Conference Briefs or on anything Mr. Sharpe had said on June 14th.
[80] Even if I found that there had been a technical breach of Rule 17(24), I would refuse leave to appeal on the second branch of Rule 62.04(4)(b), as I am not satisfied that the appeal raises issues of general public importance relevant to the development of the law and the administration of justice as opposed to merely being of particular importance only to these litigants. The restrictions on a Settlement Conference judge which preclude her from hearing a motion on the same issue are clearly set out in the Rule and the case law. They do not require further elaboration and the facts of the present case do not lend themselves to such elaboration.
[81] There would be no merit to an appeal, even insofar as the parties are concerned, if leave were to be granted. An appellate court would, in my opinion, come to the same conclusion that Justice Snowie did on the issue of child support, and on the same basis, by applying the Child Support Guidelines to the facts as they appeared from the documents forming the record of the proceeding.
[82] I am mindful of the fact that Justice Snowie’s order is the latest of many interim orders in a protracted proceeding between former spouses in a high conflict relationship. It would not serve either their interests or those of Johnathan, to permit this appeal to proceed on purely technical grounds when the eventual outcome would be the same.
[83] In Balash v. McKeen, the Court refused to grant leave to appeal where the parties had been engaged in ongoing litigation for years. The Court held that the parties’ interests and those of justice required that the litigation end by way of a trial or other final resolution. An appeal of Justice Snowie’s interim order for custody and access would not assist the parties to this end.[^22]
d) Stay Pending Appeal
[84] In the event that I had granted leave to appeal, I would not stay Justice Snowie’s order pending the hearing of the appeal. Pursuant to Rule 38(1) of the Family Law Rules, Rule 63.02(1)(b) of the Rules of Civil Procedure governs an application to stay an order from which an appeal is made.[^23]
[85] The 3-part test for a stay of a court order is a high one. The Supreme Court of Canada has held that the party requesting a stay must establish that:
There is a serious issue to be decided on appeal;
Compliance with the order under appeal would cause irreparable harm; and
The balance of convenience favours the granting of the stay.[^24]
(i) Serious issue to be decided on appeal
[86] I refer in this regard to the conclusions I reached above concerning the grounds raised in Mr. Sharpe’s motion for leave. I conclude that there is not a serious issue to be decided on appeal.
(ii) Irreparable harm
[87] The application of the test for a stay in a custody and access matter was dealt with by the court in Smith v. Galarneau.[^25] In considering an application for a stay in a matter of custody or access, the second and third branch of the tri-partite test must be modified to reflect the paramount importance of the best interests of the child. Those interests mandate a consideration of whether the child will suffer irreparable harm from the denial of a stay, and it is those interests that will ultimately determine the balance of convenience. Any harm to the applicants from the denial of a stay is thus subordinate to the best interests of the child.[^26]
[88] In the present case, Justice Snowie’s order changes custody from the primary caregiver, who had interim sole custody, to an equalized/normalized parallel parenting regime on a week-about basis with the benefit of joint custody being awarded to both parents in the best interests of the child. The 25 paragraph parallel parenting order issued by Justice Snowie on October 7, 2010, left little room for interpretation or potential for conflict between the parties. Communication problems will not be an obstacle because cooperation is not a prerequisite to each parent making decisions or to each parent carrying out his or her parental rights and responsibilities. In the case of conflict, one parent has been ordered to have the final say. Justice Snowie’s order is consistent with recent orders which have granted joint custody in high conflict cases.
[89] There is not a significant chance that Mr. Sharpe’s appeal would have been successful. Justice Snowie heard the evidence over a two day hearing and made her decision based upon the facts documented in the parties’ affidavits and financial statements. She acted within her discretion and applied correct principles in doing so. An appellate court would not second-guess her.
[90] In Mudie v. Post, this Court took up the questions of joint custody and access where both the father and the mother have equal rights to the custody of the child. The guiding consideration in determining the issue of custody is “the best interests of the child”. The court stated:
Historically, custody battles have been an all or nothing proposition. Sole custody orders have been the norm with access to the non-custodial parent through visitation rights. Such orders have granted legal responsibility and physical control to a single custodial parent to the exclusion of the other. A sole custodial order has given the custodial parent the right to decide where the child will live, how the child will be educated, what religion, if any, the child will adopt and what medical and dental care will be provided. The result has been that the voice of the non-custodial parent in the upbringing of his or her child has been essentially unheard. Any voice of the non-custodial parent in such important decisions affecting the life of “their” child has only been heard where the custodial parent has cared to listen.
It is often forgotten that the child, whatever result the court reaches, is the product of both parents. No decision of the court, no matter how limiting in the access granted to the non-custodial parent, can ever take away the fact that the non-custodial parent is still the parent of that child. It is for that reason that where a sole custody order has been made, the losing parent leaves the courtroom, feeling not only alienated from “their” child, but also alienated from the justice system which has adopted the winner-take-all approach to a custody dispute.”
It is perhaps timely for Courts in Canada to shed their ‘healthy cynicism’ and reflect in their orders a greater appreciation of the hurt inflicted upon a child by the severance of its relationship with one of its parents. Our Courts have tended, while purporting to award custody on the basis of the child’s best interests, to overlook that in some circumstances it may be in the child’s best interests not to choose between the parents but to do everything possible to maintain the child’s relationship with both parents. We accept now, I believe, that men and women who fall short as spouses may nevertheless excel as parents. We have also become increasingly aware over the last number of years that the context of a divorce action is the worst possible context in which to form an assessment of the spouses as people let alone as parents. The adversarial process by its nature requires each spouse to attack the other in order to protect his or her economic interests. This has caused an undue emphasis to be placed at trial on the deterioration of the husband-and-wife relationship and not enough on the parent-and-child relationship.[^27]
[91] Justice Snowie rightly concluded that: “Every child has a right to have a relationship with his/her parents unless those parents create a risk. There is no risk here with the mother based upon the evidence.”
[92] In J.B. v. A.B.,[^28] this Court again endorsed the concept of joint custody. It held that there is an operative but rebuttable presumption that joint custody is best for the child. The public perception of a non-custodial parent as second-class parent undeserving or unqualified to have custody is often inaccurate. A child’s best interests are not well served by this perception and are better served by having two parents who participate in making important decisions in child’s life. Hence, there is a presumption in favour of joint custody, meaning that the initial burden of proof falls on parent opposed to joint custody to rebut the presumption. Mr. Sharpe has failed to meet the onus required of him to rebut the presumption that Johnathan’s best interests are better served by having two parents who participate in making important decisions in the child’s life via an award of joint custody.
[93] In Canpages Inc. v. Quebecor Media Inc.,[^29] the Supreme Court found the Applicant must provide actual evidence of irreparable harm, not mere speculation.
The onus is on the plaintiff to demonstrate that it will suffer irreparable harm if the application is refused. The plaintiff has the onus of establishing on the evidence that it will suffer actual harm which is not compensable in damages. The law is clear that the applicant must lead evidence of irreparable harm which is not founded upon mere speculation.
[94] In Lefebvre v. Lefebvre,[^30] the Court of Appeal’s remarks when deciding not to grant a stay pending appeal are apt:
“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.”
[95] Mr. Sharpe will not suffer irreparable harm if the Order of Snowie J. is not stayed. He will have the opportunity to present his full case to the trial judge.[^31]
(iii) Balance of Convenience
[96] On a motion to stay an order pending appeal, the court will apply a balance of convenience test, similar to that on an interlocutory injunction, but with greatest weight being given to the fact that the adjudication has already taken place and is regarded as prima facie correct. The balance of convenience favours the dismissal of Mr. Sharpe’s request for a stay of proceedings. Justice Snowie’s decision gives Johnathan the benefit of parenting by both his parents. A stay would deprive him of substantial access to his mother. Justice Snowie exercised her discretion wisely and her decision should not be disturbed.[^32]
CONCLUSION AND ORDER
[97] For the foregoing reasons, Mr. Sharpe’s motion for leave to appeal and for a stay of the Order pending appeal is dismissed.
COSTS
[98] If the parties are unable to agree on costs, they may submit written arguments, not to exceed two pages plus costs outline, within 14 days.
Price J.
Released: March 25, 2011
Citation: Bergen v. Sharpe, 2011 ONSC 1930
COURT FILE NO.: DC-10-79
DATE: 2011-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JESSICA ANNE BERGEN
Applicant/Respondent in Motion for Leave to Appeal
- and –
ROBERT JOHN SHARPE
Respondent/Applicant in Motion for Leave to Appeal
REASONS FOR ORDER
Price J.
Released: March 25, 2010
[^1]: Family Law Rules, Ont. Reg. 114/99, Rule 38(1) [^2]: Rules of Civil Procedure R.R.O. 1990, Reg.194, Rule 62.02 [^3]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 62.02 (4) (a) and (b) [^4]: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542, 1992 CarswellOnt 429 (Ont.Div.Ct.), paras. 5, 6 [^5]: Greslick v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110, para. 7; Jessome v. Jessome, [1998] O.J. No. 5565 (O.S.C.J.), para. 5, 7; Balash v. McKeen, [2001] O.J. No. 2256 (O.S.C.J.), paras. 3 & 7 [^6]: Bullock v. Bullock 2007 CarswellOnt 8721 (Ont.Div.Ct.) at para. 16 [^7]: Peper v. Peper (1994), 1994 8789 (ON CA), 3 R.F.L. (4th) 24 (Ont.C.A.), leave to appeal to the Supreme Court of Canada refused (1994), 9 R.F.L. (4th) 464 (S.C.C.) [^8]: Poulin v. Poulin 2007 CarswellOnt 8268 (O.S.C.J.), para. 12-13 [^9]: Greslik v. Ont. Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Ont.Div.Ct.), para. 7; Rankin v. McLeod, Young Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (Ont. H.C.), paras. 16, 17 [^10]: Davis v. Nusca, 2003 2301 (ON SCDC), [2003] O.J. No.3692 (ON. Div. Crt.), para. 11; Daniels v. Daniels, [2006] O.J. No. 2020 (ON.S.C.), para. 3 [^11]: Sypher v. Sypher, 1986 6337 (ON CA), [1986] O.J. No. 536 (Ont.C.A.), paras. 2-4; Cheeseman v. Walsh 2006 CarswellNfld 248 (Nfld. C.A.), paras. 17-18; Pestell v. Krystia, 2004 5022 (ON S.C.), para. 11 [^12]: Children’s Law Reform Act, R.S.O. 1990, c. C. 12, s. 29 [^13]: Persaud v. Garcia-Persaud, 2009 ONCA 782 [^14]: Persaud v. Garcia-Persaud, above, at para 3. See also: Venkatesh v. Venkatesh, at para. 39 [^15]: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 13 [^16]: A. (J.) v. B. (P.L.), 2005 CarswellBC 2850, at para. 49 (BC S.C.) [^17]: Bigley v. Sanders, 2005 CarswellOnt 7317 (Div. Ct.) [^18]: St. Elizabeth Home Society v. Hamilton (City), 2001 CarswellOnt 2322 (ON S.C.) [^19]: Heward v. Eli Lilly & Co., 2007 CarswellOnt 4363 (ON S.C.) [^20]: Children’s Aid Society of Brant v. R. (S.C.K.M.), 2010 ONSC 5846, 2010 CarswellOnt 8221 [^21]: Children’s Aid Society of Brant v. R. (S.C.K.M.), 2010 ONSC 5846, 2010 CarswellOnt 8221 [^22]: Balash v. McKeen, above, at paras. 3 & 7 [^23]: Rule 38(1), Family Law Rules, Ont. Reg. 114/99; Rule 63.02(1)(b), Rules of Civil Procedure R.R.O. 1990, Reg.194 [^24]: R.J.R.-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 (S.C.C), para. 48 [^25]: Smith v. Gararneau [1998] O.J. No. 893 (G.D.) [^26]: C.B. V. P.C. 2003 ABCA 321, [2003] A.J. No. 1343 (C.A.) [^27]: Mudie v. Post, [1998] 14883 (ON S.C) [^28]: J.B. v. A.B., [2006] 12294 (ON S.C.) [^29]: Canpages Inc. v. Quebecor Media Inc., [2008] 26660 (ON S.C.) [^30]: Lefebvre v. Lefebvre, [2002] 17966 (ON C.A.) [^31]: Perera v. Canada 2006 CarswellNat 3417 (F.C.), para. 5-6 [^32]: Grymes v. Gaudreault 2004 CarswellBC 2223 (B.C.C.A.), para. 26-27