Closner v. Closner, 2019 ONSC 703

CITATION: Closner v. Closner, 2019 ONSC 703 DIVISIONAL COURT FILE NO.: 785/18-00ML DATE: 20190128

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Neil Jonathan Closner, Applicant/Respondent in Appeal AND: Sherri Lavine Closner, Respondent/Appellant in Appeal

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL: Stephen Grant and Kristen Normandin, for the Moving Party, Sherri Lavine Closner Gary Joseph and Stephanie Timerman, for the Respondent, Neil Jonathan Closner

HEARD: January 16, 2019

ENDORSEMENT

[1] The parties to this motion are the parents of their daughter Quinn who is now five years old. The applicant on this motion, Sherri Lavine Closner (the “applicant” or “Sherri”), sought a stay of the order dated November 29, 2018 of Shore J. (the “Order”) pending the hearing of her motion for leave to appeal the Order and, if leave is granted, pending the hearing of her appeal of the Order. The Order varied a previous interim order of Croll J. dated June 22, 2017 (the “Croll Order”). On January 21, 2018, I advised the parties that the motion was denied for written reasons to follow shortly. This Endorsement sets out the reasons of the Court for this decision.

Applicable Law

[2] Rule 62.02(4) governs the grounds for granting leave to appeal an interlocutory order, including the Order, as follows:

Leave to appeal from an interlocutory order shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted.

[3] To obtain a stay of the Order, the applicant must satisfy the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney-General), [1994] 1 S.C.R. 311 at para. 43:

Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. It may be helpful to consider each aspect of the test and then apply it to the facts presented in these cases.

[4] In custody and access cases, the paramount interest, which is reflected in the consideration of irreparable harm and the balance of convenience in particular, is the best interests of the child. The focus of these concepts is well expressed in A.(D.) v. K.(H.), [2014] A.J. No. 1204 (C.A.) at para. 29 as follows:

The words "irreparable" and "convenience" are awkward in this context if taken in their more common connotations. As to irreparable, the moving finger writes and moves on in human existence, and in the life of a young child it cannot be called back. What is really conveyed by the concept of 'irreparable' harm in this context is that the harm is real and significant and that it is more than the transitory disturbances of growing up. So there is emphasis on the quality of the harm and its potential for lingering effect. Similarly, as to convenience, the matter is not really a balance between two disputants. The concept is a child interest dominated perspective and looks to where the disadvantages or harms may rest more lightly. In family break-down situations, it may well be that none of the available alternatives is desirable in its own right, and therefore the ultimate focus is on choosing the least undesirable, with emphasis on the children's situation.

Factual Background

[5] The Croll Order provided that the child of the marriage, Quinn, would have her primary residence with Sherri and specified parenting time with Neil involving 5 of 14 overnights on a two-week cycle. The Croll Order also ordered the parties to participate in a Section 30 assessment and provided that the interim parenting schedule could be reviewed following the completion of the Section 30 assessment report.

[6] The parties retained Howard Hurwitz (“Hurwitz”) to conduct the Section 30 assessment. Hurwitz released his final report on April 25, 2018 (the “Hurwitz Report”). In connection with the Report, Dr. Olga Henderson (“Henderson”) performed psychological testing of both parties. The results of Henderson’s testing are included in the Hurwitz Report.

[7] Hurwitz recommended a two-phase “step-up” parenting plan for Quinn. Phase 1 provided for Quinn to spend 5 of 14 overnights with Neil, on a two-week schedule, although on a different schedule from that contemplated by the Croll Order. Phase 2 provided for a 2-2-3 shared parenting schedule from and after August 19, 2019, shortly before Quinn enters grade one.

[8] Sherri was prepared to implement the Phase 1 schedule. However, Neil brought a motion for the immediately implementation of the Phase 2 schedule recommended in the Hurwitz Report. The motion judge ordered two modifications to the residential schedule in the Croll Order: (1) the Friday to Sunday stay with the respondent at the end of the first week was extended to Monday morning; and (2) the Monday night stay during the first week was extended to include a Tuesday night stay.

Analysis and Conclusions

[9] I will address each of three parts of the test for a stay in turn.

Serious Issue to be Tried

[10] In her notice of motion for leave to appeal, the applicant alleges that there are conflicting decisions by other judges in Ontario regarding the need to have regard to, and to apply, the recommendations of a Section 30 assessor on an interim motion for custody and access. She argues that the motion judge disregarded this case law in failing to implement Phase 1 of the Hurwitz Report. However, on the hearing of the motion, the applicant identified somewhat broader grounds of appeal which subsumed the grounds in her notice of appeal. In doing so, the applicant also effectively argued that there appeared to be good reason to doubt the correctness of the decision of the motion judge in addition to the existence of conflicting decisions. I have addressed the merits of the appeal based on the issues argued before the Court.

[11] Before addressing whether the applicant has demonstrated a serious issue for the purposes of the first requirement of the test for a stay, I will set out five observations that inform the issues on this motion.

[12] First, the decision of the motion judge was a discretionary decision involving the exercise of her discretion under, among other provisions, ss. 24 and 28 of the Children's Law Reform Act, R.S.O. 1990, c. C.12. As the Divisional Court noted in Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Gen. Div.), for the purposes of an appeal under r. 62.02(4)(a), “[a]n exercise of discretion which has led to a different result because of different circumstances does not meet the requirement for a "conflicting decision". It is necessary to demonstrate a difference in the principles chosen as a guide to the exercise of such a discretion.”

[13] Second, the motion judge had ample grounds for making the two modifications to the Croll Order. The extension of the weekend stay to Monday morning was necessary in order to avoid transition conflict that existed in respect of the bi-weekly weekend stay with the respondent. The motion judge added the Tuesday night stay in furtherance of the “maximum contact” principle, in light of the increased time that the respondent now has as a result of the sale of his business since the Hurwitz Report was prepared.

[14] Third, the Croll Order invited a review of that order upon receipt of the assessment report contemplated therein. The motion judge restricted her mandate to modifying the Croll Order to address the circumstances as of the date of the motion before her after the receipt of the Hurwitz Report. In the exercise of her discretion and in furtherance of her obligation to address the best interests of Quinn, the motion judge concluded that continuing the current residential schedule was not in the best interests of Quinn and that it was in her best interests to move to a residential schedule involving equal time with both parents. The motion judge crafted an order that she considered was appropriately responsive to Quinn’s best interests at the time. While the motion judge noted that the residential schedule was similar to the Phase 2 schedule in the Hurwitz Report, she did not simply implement Phase 2 in that Report as the applicant suggests.

[15] Fourth, the motion judge limited her reliance on the Hurwitz Report to certain observations in that Report. In particular, she relied principally on the observations that (1) there is no real concern about the parenting of the parties; (2) this is a high conflict case and Quinn would benefit from a reduction of that conflict; and (3) each parent was capable of marginalizing the other parent’s role in Quinn’s life.

[16] Fifth, the applicant suggests that implementation of Phase 2 in the Hurwitz Report would involve a qualitative difference from Phase 1 of real significance in Quinn’s life. At the hearing, however, she retracted the suggestion that the Hurwitz Report recommended moving to Phase 2 only after satisfactory completion of psychotherapy by the respondent. Given the need to revise the residential schedule in the Croll Order to address the conflict on the Sunday evening transition, the issue on this motion is, as a practical matter, therefore reduced to the significance of the motion judge’s addition of one additional overnight stay every two weeks.

[17] With this background, I turn to the two grounds of appeal of the applicant. As stated in Filia Estate v. Hamilton, 2008 ONCA 784 at para. 15, a “serious issue” in the context of an appeal is “a ground of appeal that has a reasonable prospect of success.”

[18] The applicant’s first ground of appeal is that the motion judge ignored the warnings in the Hurwitz Report of the risks of awarding the respondent increased access to Quinn. She suggests that these risks were reflected in Hurwitz’s recommendation that an updated assessment should be considered if the conflict between the parents continued after the conclusion of the Hurwitz Report. She submits that this means that, in the present circumstances, an updated assessment should have been ordered before the motion judge ordered implementation of Phase 2. Put another way, Sherri argues that, if the motion judge determined to implement the Hurwitz Report, she should have implemented the entirety of it including, in particular, the requirement for an updated assessment prior to implementing Phase 2.

[19] I have approached this ground of appeal as involving the assertion that there are reasonable grounds for doubting the correctness of the decision of the motion judge based on a failure to understand, and apply, the Hurwitz Report in its entirety.

[20] This argument is based on a misreading of the particular recommendation in Hurwitz Report, which reads as follows:

In the event that this parallel parenting arrangement is not successful, and, if the parental conflict does not subside after the conclusion of this Section 30 assessment, an updated assessment should be considered with a view to determining any changes to the custody, decision-making and residential schedule provisions of this parenting plan. A review should occur no earlier than the 6 month point once the parents have signed off on the parenting plan. In the event that one (or both parents) attempts to deliberately undermine this parenting plan within the 6 month period, this information will be known as part of the updated assessment.

[21] The recommendation is that a review should be conducted no earlier than six months after implementation of a parenting plan covering custody, decision-making and residential schedule incorporating the recommendations on these matters in the Hurwitz Report. Hurwitz did not recommend that an updated assessment limited to the residential schedule be conducted six months after receipt of the Hurwitz Report if conflict continued between the parties. That would not make any sense from a timing perspective. Moreover, the residential schedules set out in the Hurwitz Report already took continuing conflict into consideration.

[22] Insofar as the applicant suggests more generally that the motion judge failed to err on the side of caution as mandated by case law, the evidence does not demonstrate any risk of harm to Quinn that would result from the modifications to the Croll Order. This is discussed further below.

[23] Accordingly, I am of the view that this ground of appeal that has no reasonable prospect of success.

[24] The applicant’s second ground of appeal is that the decision of the motion judge conflicts with established case law that requires that assessment reports should be reserved for use at trial. As a related manner, the applicant further submits that the case law provides that an assessment report should not be used to vary an interim order absent evidence that the existing arrangement is harmful to the child, other than in exceptional circumstances that do not exist here. She says that, if there was a need to vary the Croll Order, the motion judge should have limited the modifications of that order to implementation of Phase 1.

[25] In support of her position, the applicant relies on the dicta in McEachern v. McEachern, 1994 7379 (ON SC), [1994] O.J. No. 1544 (Gen. Div.) at para. 8 which referred to the “the generally accepted principle that the status quo ought not to be changed on an interim basis in the absence of evidence that the existing arrangement is harmful to the children.” The applicant also relies on the related statement in McEachern at para. 12 that an assessor’s report should not be used to seek a variation of an interim custody order but, instead, should be restricted in use to the trial to assist the court in making a final order regarding custody and access.

[26] This ground of appeal asserts both that there are conflicting decisions of other Ontario judges and that there appear to be reasonable grounds for doubting the correctness of the decision of the motion judge on principled grounds. I do not think this ground of appeal has a reasonable prospect of success for two reasons.

[27] First, as noted above, there was a clear and obvious need to vary the Croll Order to address the Sunday night transition to avoid harm to Quinn. To that extent, at a minimum, the circumstances before the motion judge satisfied the test in McEachern for a variation of the Croll Order. The issue on the applicant’s appeal therefore effectively reduces to whether harm was required to be demonstrated in ordering the extra overnight stay every two weeks. It is certainly arguable, as well, that Quinn suffered harm to the extent that the arrangements under the Croll Order did not implement the “maximum contact” principle to the fullest extent possible in the circumstances of the respondent’s increased free time to devote to his daughter.

[28] Second, as discussed above, the motion judge limited her reliance on the Hurwitz Report to certain important observations of the assessor, rather than relying on its recommendations.

[29] Third, more generally, case law since McEachern reflects a more flexible approach to the variation of interim residential orders and to the use of assessor reports in the consideration of motions for such relief. These developments are reflected in the following statements of Sheppard J. in Bos v. Bos, 2012 ONSC 3425 at paras. 23 and 24:

In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are "exceptional circumstances" as set out in Genovesi. In fact"exceptional circumstances" findings were not made in either Forte or Kerr.

The court has a duty to make orders in a child's best interests and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor.

[30] In the present case, it is significant that the trial is not on the horizon, no date having even been set, so there is a need to ensure that the temporary residential order in effect until trial is responsive to the best interests of Quinn. In addition, as the motion judge noted, the only evidence of any utility before her was the Hurwitz Report. Further, given the obvious need to address the Sunday night transition problem and given that the practical issue is therefore limited to the addition of one overnight every two weeks, which is supportable on the “maximum contact” principle, the Order did not represent a “substantive departure from an existing order or status quo”. Lastly, for the reasons set out above, I think it is wrong to suggest that the motion judge implemented Phase 2 of the Hurwitz Report, rather than thoughtfully crafted modifications of the Croll Order that she considered to be necessary in reliance on certain important observations in that Report.

[31] In summary, given the current case law regarding temporary parenting orders, the discretionary nature of the decision of the motion judge, the appropriateness of the Order given the present circumstances, and the difference in the circumstances in the case law relied upon by the applicant from the present circumstances, I do not think that the Order conflicts with any decision of other judges nor do I see any error in principle that constitutes a good reason to doubt the correctness of the Order.

[32] Based on the foregoing, I therefore conclude that the applicant has failed to demonstrate a serious issue on her appeal.

Irreparable Harm

[33] Irreparable harm for the purposes of the test for a stay of the Order is focused on harm to Quinn. The applicant raises two issues of potential irreparable harm to Quinn from implementation of the Order.

[34] First, the applicant says there is a real risk of harm to Quinn based on certain observations in the Hurwitz Report pertaining to the respondent’s character, which she has extracted in three paragraphs of her Factum. Most of these comments relate to the relationship between the applicant and the respondent, rather than to the respondent’s capabilities as a parent of Quinn. Similarly, the comments about the respondent’s need for control were focused principally on his need for control in the context of his relationship with the applicant, not in his relationship with Quinn. Insofar as the Henderson psychological report with respect to the respondent suggested that his need for control could give rise to limitations in his parenting, the observations are speculative at the present time. They are also not reflected in any current concern on Hurwitz’s part for the respondent’s parenting.

[35] The issues raised regarding the character of the respondent, together with the issues raised regarding the character of the applicant, are treated in the Hurwitz Report as matters that should be taken into consideration in the creation of the parallel parenting plan proposed by Hurwitz, rather than as risks to Quinn. Nor are they proposed as giving rise to the need for an updated assessment limited to the residential schedule prior to implementation of Phase 2, as the applicant suggests. There is therefore also no harm to Quinn in the form of a missed opportunity to benefit from an updated assessment regarding the residential arrangements, as the applicant suggests.

[36] More significantly, as mentioned, the motion judge found that there was no real concern for the parenting of Quinn and that both parties were good parents to Quinn. As the motion judge noted, “Mr. Hurwitz did express some concern with each of the parents, but nothing significant to enough to cause concern about their ability to parent Quinn.” Each party can point to inadequacies of the other in the Hurwitz Report. However, when read in its entirety, the Hurwitz Report is supportive of this finding of the motion judge.

[37] In short, there was no evidence before the motion judge to suggest a real concern of a risk to Quinn associated with an increase in the respondent’s parenting time.

[38] Second, the applicant raises the possible dislocation that would arise if the residential schedule under the Croll Order were reinstated on a successful appeal. Given the analysis above regarding the reasonable prospect of success of the appeal, however, it is more likely that the current schedule would be maintained. Accordingly, it would be more disruptive to grant the stay than to deny it and await a determination of the appeal.

[39] I conclude therefore that the applicant has failed to demonstrate a risk of irreparable harm to Quinn that would result from a denial of the requested stay of the Order.

Balance of Convenience

[40] The issue of balance of convenience also focuses on the child. In this case, the balance of convenience favours the residential schedule ordered by the motion judge. It removes the risk of harm caused by conflict on the Sunday evening transition and adds an additional overnight in furtherance of the benefits of “maximum contact” in circumstances where the respondent now has additional time to spend with Quinn. It also addresses, in part, the concern that one parent will attempt to marginalize the role of the other in Quinn’s life by providing for an equal sharing of residential time.

[41] As mentioned, the applicant has raised two concerns for potential harm to Quinn. Given the Court’s conclusion that these concerns do not represent real risks of harm to her, they do not factor into the consideration of the balance of convenience.

[42] Based on the foregoing, I therefore find that the balance of convenience favours a denial of the requested stay of the Order.

Conclusion

[43] Based on the foregoing, the applicant’s motion for a stay of the Order is dismissed.

Costs

[44] If the parties are unable to agree on costs, they shall have thirty days to provide written costs submissions not exceeding five pages in length accompanied by a costs outline as required by the Rules of Civil Procedure.

Wilton-Siegel J.

Date: January 28, 2019