CITATION: Watt v. Howe, 2016 ONSC 7405
DIVISIONAL COURT FILE NO.: 16-2258 (Ottawa)
DATE: 2016/11/30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
AITKEN J.
BETWEEN:
CLORIES SHANTELLE WATT
Respondent (Appellant)
– and –
GRAHAM COURTNEY HOWE
Applicant (Respondent)
Balsam Bashi, for the Respondent (Appellant)
Carolyn Shelley, for the Applicant (Respondent)
HEARD: November 25, 2016
REASONS RE MOTION FOR STAY PENDING APPEAL
Aitken J.:
Nature of the Proceeding
[1] The Respondent/Appellant mother (“Appellant” or “mother”) brought a motion under r. 38 of the Family Law Rules, O. Reg. 114/99 and r. 63 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to stay pending appeal the orders of Robertson J. dated September 22, 2016 and November 9, 2016. At the conclusion of argument, I granted the stay with written reasons to follow. These are those reasons.
Background Facts
[2] The parties are the parents of Emelia Howe, born March 28, 2008. At the time of their separation, the parties and Emelia were living in Petawawa, Ontario. Subsequently, the mother, although maintaining a residence in Renfrew County as required by court order, spent much time with her new spouse, Paul David, in Ottawa. Mr. David is an officer in the Canadian Armed Forces and, at the time, was posted in Ottawa. During the course of the parties’ litigation, Mr. David was posted to Kingston. Prior to the parties’ settlement of their custody and access dispute, the Applicant/Respondent father (“Respondent” or “father”), a non-commissioned officer with the Forces, agreed to Emelia’s relocation to Kingston with her mother because he anticipated being able to transfer to Trenton. That transfer did not occur until 2014, at which time the father moved to Wooler, northwest of Trenton. In the meantime, Emelia went back and forth between Kingston and Petawawa spending weekdays with her mother and three out of the four weekends with her father. The time-sharing arrangements continued without change after Emelia’s father moved to the Trenton area.
[3] The parenting arrangements for Emelia were the subject of extensive litigation between the parties following their separation. A parenting assessment was obtained in 2010 and an additional report was obtained from the Office of the Children’s Lawyer. Ultimately, the parties entered Minutes of Settlement which resulted in the order of Selkirk J., dated February 7, 2012. Pursuant to that order:
• The parties were granted joint custody of Emelia.
• Both parties, acting jointly and following consultation and agreement, were to make the major decisions in Emelia’s life.
• Emelia was to attend school in her mother’s area.
• Emelia was to reside with her mother in Kingston from Sunday evenings to Thursday at 3:00 p.m.
• Emelia was to reside with her father in Petawawa from Thursday at 3:00 p.m. to Sunday at 5:00 p.m., except for the last weekend of each month, when Emelia would be with her mother.
• It was anticipated that Emelia’s father would transfer to the Trenton area to live closer to Emelia.
• The parties were to share the transportation of Emelia equally. While the father remained in Petawawa, the parties were to meet at a location in Carleton Place or Almonte for transfers.
• Neither party was allowed to move Emelia’s residence farther away from the other party’s residence without the written agreement of the other party or a court order.
• When Emelia started grade one, her father was to have her in his care for all statutory holidays and P.D. days adjoining his scheduled time with Emelia, and his time with Emelia was to start on Friday, not Thursday, when she was in school.
• Special arrangements were made for those days when, due to work commitments, the father was not available to care for Emelia.
• Both parties had reasonable telephone and email access to Emelia at all times.
• Holiday times and the summer holidays were divided equally between Emelia’s parents.
• Special provisions were included should a parent wish to travel outside Ontario or Canada with Emelia.
• Communication with respect to important decisions was to be raised as soon as possible.
• Emelia’s father was to pay her mother child support in the amount of $644 per month.
• Special or extraordinary expenses agreed to by the parties were to be shared between them in proportion to their incomes.
[4] Since the original order was made, there were times when Emelia’s father was unable to personally exercise his parenting time with her due to various postings. Those times included June 2013 to March 2014, January 2015 to May 2015, September 31, 2015 to October 25, 2015, nine days in November 2015, and April 9, 2016 to July 14, 2016. As well, between November 2014 and June 2015, Emelia’s father was required to work on weekends when Emelia was in his care. By 2015, Emelia’s father had repartnered with Heather Walker, a civilian employee of the Forces at Trenton. Until this most recent litigation commenced, when Emelia’s father was unavailable to care for Emelia due to work commitments, Emelia would be cared for by Ms. Walker. There were other times when Emelia’s father was unable to care for Emelia and when Emelia’s mother agreed to adjust the time-sharing arrangements.
[5] In March 2016, Mr. David learned that his application for a position in Ottawa had been approved. Emelia’s father would not consent to Emelia’s home with the mother being moved to Ottawa. Consequently, Mr. David rented an apartment for himself in Ottawa, and Emelia’s mother and her step-sister, Padma, continued to live in the family home in Kingston. Litigation ensued as to whether Emelia’s mother would be permitted to relocate Emelia’s residence with her to Ottawa.
Orders Being Appealed
[6] On September 22, 2016, the motions judge dismissed the mother’s request for Emelia to be in her continued care after she moved from Kingston to Ottawa. This decision was based only on written materials; it was not a decision made following a trial. The parties sought further clarification of the implications of the September 22nd order. On November 9, 2016, the motions judge issued what was intended to be a clarification of her earlier order. The November 9th order stated that: (1) Emelia was to be in the primary care of her father effective September 22, 2016; (2) the father was encouraged to move to Kingston, but the father’s plan to have Emelia in Wooler, Ontario was also suitable; and (3) the father’s obligation to pay child support for Emelia was suspended effective November 8, 2016. At the time of the follow-up hearing in November, and continuing through to today, Emelia’s mother has continued to live in Kingston, and the time-sharing arrangements in place pursuant to the order of Selkirk J. have remained in effect.
[7] Emelia’s mother is appealing the two orders of the motions judge on numerous grounds relating to errors of law, errors of fact, and errors of mixed fact and law. One of the errors involved the motions judge finding that the father’s plan of primary residence in Wooler with Emelia commuting from Wooler to Ottawa for access was acceptable but the mother’s plan for Emelia’s weekday residence to be in Ottawa with her commuting to Wooler for weekend access was unacceptable, without providing any reasons for the distinction. This was in the context of the motions judge having found that it was in the best interests of Emelia for travel time to be minimized. The parties agree that this was an error on the part of the motions judge.
Legal Test for a Stay
[8] The governing principle is that a stay should be granted if it is in Emelia’s best interests to do so. For the reasons that follow, I conclude that it is in Emelia’s best interests for a stay to be granted. In coming to this conclusion, I am applying the test for staying a custody or access order pending an appeal as set out in the jurisprudence, namely 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. I note that the threshold for establishing whether there is a serious question is quite low. As well, all three parts of the test are interrelated with the strength of one element being capable of overcoming any weakness in another (Barnes v. Parks (2001), 2001 24146 (ON CA), 141 O.A.C. 362 (C.A.), at para. 2; Lefebvre v. Lefebvre (2002), 2002 17966 (ON CA), 167 O.A.C. 85 (C.A.), at para. 6; Mudry v. Danisch, 2014 ONSC 4335, 48 R.F.L. (7th) 176 (Div. Ct.), at para. 165).
[9] As stated in Mudry, at para. 171, in custody and access cases, irreparable harm and the balance of convenience are inextricably linked. The court must consider whether the stay’s issuance or denial would better serve, or cause less harm to, the child’s interests.
Strength of the Appeal
[10] I am mindful of the limited scope of appellate review as explained in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10 and 12, and Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 12-15. Nevertheless, based on the limited material before me (which did not include the mother’s notice of motion seeking the court’s permission to move Emelia’s residence to Ottawa), I conclude for a number of reasons that Emelia’s mother has a very arguable appeal. The arguments to be advanced include the following:
• The motions judge declined to consider the option available to her of refusing to allow the mother to move Emelia’s residence to Ottawa but of leaving Emelia in the mother’s care in Kingston if the mother decided (as she has) to remain in Kingston unless she has the consent of the father or the permission of the court to move.
• The motions judge failed to take into account the impact a change in Emelia’s parenting arrangements would have on herself and her half-sister, Padma, who is only two years younger than Emelia and who attends the same school as Emelia. The normal routine of both girls and the bond between them would of necessity be impacted by having Emelia live with her father during the school week.
• In her Reasons, the motions judge did not focus on what would be in Emelia’s best interests but, instead, appeared to fault the mother for being in the position of having to seek the court’s permission to move in circumstances where her current husband received a promotion requiring his move to Ottawa.
• In her Reasons, the motions judge labelled both parents “access parents” because there was no mention of primary care or primary residency in the original order of Selkirk J.; however, she went on to place Emelia in the father’s “primary care” without providing any reasons as to why an order of “primary care” was now required and why it would be in Emelia’s best interests for her father, instead of her mother, to provide primary care.
• The motions judge failed to appreciate that the original order of Selkirk J. did not require consent on the part of both parents prior to either parent seeking to move his or her residence with Emelia. The order of Selkirk J. explicitly provided that, in the absence of such consent, the party seeking to move had the right to bring the matter before the courts for permission. Considering both parties had agreed to the mother moving with Emelia to Kingston prior to their signing Minutes of Settlement and obtaining the consent order, and considering both Emelia’s father and her step-father were in the Forces at the time (and still are), it is understandable why the parties realized that mobility issues might arise again in the future and they would need a mechanism for resolving any dispute between them in this regard if they could not come to an agreement.
• The motions judge failed to assign any weight to the fact that Emelia has been in her mother’s continuous weekday care since her birth and, more particularly, since she started to attend school; that her mother has been the parent most actively engaged in Emelia’s education; and that her mother has made all of the arrangements for Emelia’s extracurricular activities and has paid for the same. In reality, although not described as such in the order of Selkirk J., Emelia has been in the mother’s primary care since the separation. The November 9th order of the motions judge reversed primary care without providing adequate reasons why a change in Emelia’s primary care was in her best interests. There was no evidence that, aside from the mother’s request for permission to move Emelia’s residence with her to Ottawa, there were any other reasons that would mandate a change in Emelia’s primary care.
• The motions judge failed to assign any weight to the fact that Emelia’s mother is a stay-at-home mother and that, as a result, Emelia currently does not require before or after school care. Both Emelia’s father and her step-mother, Ms. Walker, work in Trenton. It was implicit in the materials that, if Emelia was spending the weekdays in her father’s care, she would require either or both of before and after-school care.
• The motions judge failed to assign any weight to the fact that Emelia’s father is away frequently (for days, weeks, or months) on work assignments during which time, if Emelia was at her father’s residence, she would be cared for by Ms. Walker or a child care provider and not Emelia’s father.
• The motions judge failed to provide any reasons as to why it would be in the best interests of Emelia to spend the week with her father in Wooler (thereby requiring her to change schools and communities and likely be in daycare for part of the day) as opposed to her spending weekdays in Ottawa (also requiring her to change schools and communities but not being in daycare). The commuting distance for visits with the other parent (a major consideration in the Reasons of the motions judge) would be the same.
[11] At this preliminary stage, I conclude that the mother has good grounds for an appeal. She has raised serious issues as to whether the motions judge erred in fact and in law. I note that the motions judge rendered her decision on the basis of a written record available on September 22, 2016. She did not have the benefit of hearing oral evidence at trial.
Irreparable Harm
[12] The issue as to whether Emelia will suffer irreparable harm if the orders of the motions judge are not stayed must be considered through the lens of what is in Emelia’s best interests. Recognizing the importance of stability and security in the life of a child, and based on the premise that the mother will continue to reside in Kingston pending the hearing of the appeal, it is easy to conclude that it would be in Emelia’s best interests to continue residing with her mother during the week and to see her father on three of the four weekends, as she has been doing for the last four years. Such a conclusion is consistent with the assessment of the motions judge. It would be disruptive, confusing, and harmful to Emelia to have her weekday residence changed to that of her father, when her mother and sister remain in Kingston, and the only reason why there is a court order changing her weekday residence is the assumption that Emelia’s mother had moved to Ottawa. In my view, this would cause Emelia unnecessary upset that, once experienced, cannot be undone.
Balance of Convenience
[13] For the same reasons just provided, I find the balance of convenience favours Emelia continuing to reside with her mother during the week pursuant to the parenting plan and timesharing arrangement that has been in place for several years. Nothing would be gained by changing those long-standing living arrangements prior to the determination of the appeal in this matter.
Timing of the Appeal
[14] The notice of appeal has been served and filed. The appeal remains to be perfected. If the parties are unable to agree to an appropriate timeline for the service and filing of the required documents, procedural issues may be brought back before me by way of a conference call arranged through the trial coordinator. All efforts should be taken to have the appeal heard as quickly as possible. The trial coordinator in Ottawa is aware of the importance of this appeal being heard as quickly as possible following service and filing of all necessary documents. In that it is anticipated that this appeal will be heard in a matter of a few months, I do not see the need to alter the existing time-sharing arrangements by which the parties have lived for several years. In his materials presented on the original motion, the father advised that continuing with those arrangements was one option acceptable to him.
Child Support
[15] In that the orders of the motions judge are stayed pending appeal, the existing child support order requiring the father to pay the mother child support for the benefit of Emelia continues in effect, with no gap in such payments.
Costs
[16] The mother is seeking her costs on the motion for a stay. The father takes the position that such costs should be dealt with at the time of the appeal. Under r. 24(10) of the Family Law Rules, costs are to be dealt with promptly after each step in the case. Under r. 24(1), there is a presumption that the successful party is entitled to the costs of a motion.
[17] As already indicated, the mother has strong arguments to make that the motions judge erred in law and in fact in rendering her decisions. The father has acknowledged that a move in the weekday residence of Emelia will initially be upsetting to her. There is no dispute that Emelia already misses her step-father, who is now posted in Ottawa. There is no dispute that, if her weekday residence is changed to be her father’s home, Emelia will miss her mother, her sister, and her normal routine. I would have thought that it was obvious to both parties that a court on a motion to stay was likely to grant the stay. As noted above, in his materials filed on the original motion, the father indicated that a continuation of the status quo established under the order of Selkirk J. was acceptable to him.
[18] The fees and disbursements reflected on the docket sheets of the mother’s counsel total $6,624.62. This is based on the mother’s counsel, who was called to the Bar in 2014, charging her time at the rate of $250 per hour – a rate that I consider high for such a recent call. The father’s counsel candidly acknowledged that the total fees and disbursements that would be reflected on her Bill of Costs (had one been prepared) would be higher, in part due to her being in practice significantly longer than the mother’s counsel. The father’s counsel raised no concerns about the time the mother’s counsel had devoted to the file, although she did question whether the mother should recover any costs attributable to the motion being argued in Ottawa, when it could have been brought before a judge in Kingston.
[19] I am left wondering how these two litigants (the father being a non-commissioned officer with the Forces, and the mother being a stay-at-home parent) can possibly afford this litigation. They have just spent thousands of dollars to be told that the living arrangements for Emelia that they were following on their own before the motion to stay was brought are in Emelia’s best interests for the time being. They have just spent the equivalent of at least one year of university expenses to get an interlocutory decision that, had common sense and reasonableness prevailed, they could have arrived at quite easily on their own.
[20] Taking these considerations into account, I order the father to pay the mother costs on the motion to stay in the amount of $3,000.00, inclusive of disbursements and HST.
Disposition
[21] For these reasons, I granted the Appellant mother’s motion for a stay pending appeal, and granted her costs in the amount of $3,000.
Aitken J.
Released: November 30, 2016
CITATION: Watt v. Howe, 2016 ONSC 7405
DIVISIONAL COURT FILE NO.: 16-2258
DATE: 2016/11/30
BETWEEN:
CLORIES SHANTELLE WATT
Respondent (Appellant)
– and –
GRAHAM COURTNEY HOWE
Applicant (Respondent)
REASONS RE MOTION FOR
STAY PENDING APPEAL
Aitken J.
Released: November 30, 2016