Court File and Parties
CITATION: Vasilodimitrakis v. Homme, 2020 ONSC 2355
COURT FILE NO.: D24/20
DATE: April 22, 2020
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: GEORGINA EVANTHIA VASILODIMITRAKIS, applicant/appellant
AND:
MICHAEL WAYNE HOMME, respondent/respondent in appeal
BEFORE: MITROW J.
COUNSEL: Farrah Hudani and Christina Doris for the applicant/appellant
Richard M. Gordner for the respondent/respondent in appeal
HEARD: April 9, 16, 2020
ENDORSEMENT
[1] The appellant and the respondent are the mother and father of a daughter, age 14 (“the child”). The appellant brings this motion for a stay pending appeal of the interlocutory order of Bondy J. (the “motion judge”) made in the Superior Court of Justice dated April 7, 2020. The effect of the order was to permit the respondent to continue exercising in-person access to the child pursuant to an existing final order.
[2] The appellant had sought an order suspending the respondent’s ongoing access due to the COVID-19 pandemic and the child’s increased vulnerability due to the child’s medical condition.
[3] In her motion for a stay, the appellant also seeks an order that the child be represented by the Office of the Children’s Lawyer (“OCL”) or a private lawyer pursuant to s. 64 of the Children's Law Reform Act, R.S.O. 1990, c. C.12. The order of the motion judge was made pursuant to the Children's Law Reform Act.
[4] The appellant’s motion first came before me on April 9, 2020 as an urgent motion pursuant to the protocol in place during the suspension of normal court operations as set out in the notice dated March 15, 2020 published on this court’s website. The appellant had stopped allowing the respondent in-person access to the child effective March 24, 2020 via a letter forwarded through her counsel, Ms. Weisman (who is not counsel on the appeal).
[5] I am satisfied that the urgency requirement was met as the respondent had an access weekend scheduled to commence on Friday, April 10, which was only three days following the date of the order.
[6] On April 9, 2020, the motion was adjourned for one week pursuant to a brief endorsement made that day. The endorsement allowed the respondent an opportunity to file material. The respondent had agreed to defer his access scheduled for the intervening weekend, pending the one-week adjournment, subject to being able to obtain make-up access depending on the outcome of the motion to stay.
[7] The respondent served a motion returnable April 16, 2020 to admit fresh evidence. On that date, at the conclusion of hearing both motions, an order was made that the respondent’s in-person access would not occur pending the release of the decision on the motion to stay. However, it was ordered that the respondent should have video access. The decision on the respondent’s fresh evidence motion also was reserved.
[8] For reasons that follow: the appellant’s motion is dismissed, but subject to some conditions; the respondent’s motion for fresh evidence is dismissed subject to some conditions; the issue of the make-up access is dealt with in the order below; and the motion for leave to appeal is expedited with filing deadlines.
THE EVIDENTIARY RECORD ON THE APPELLANT’S MOTION FOR A STAY
[9] The appellant signed two affidavits consisting of her initial affidavit sworn April 9, 2020 and her reply affidavit sworn April 15, 2020. The respondent filed one affidavit that was unsigned. In accordance with the protocol regarding urgent motions, the respondent was present during the teleconference hearing; on April 16, the respondent was affirmed and testified that the contents of his 99-paragraph affidavit were true and correct.
[10] Additional documents filed by the appellant consisted of the appellant’s motion for a stay, the appellant’s motion for leave to appeal to the Divisional Court, a copy of the notice of appeal, the appellant’s factum and a supplemental statement of fact and law.
[11] The respondent’s additional material included his factum, his motion for leave to file fresh evidence and a sworn affidavit in support of the fresh evidence motion signed by his counsel’s legal assistant.
[12] During the hearing of the motion on April 9, 2020, the appellant referred to an email that had been forwarded to counsel from Justice for Children and Youth. The appellant referred to this email in support of her position that the child should be represented. During that hearing, I permitted appellant’s counsel to read the email to the court. At that time, I made no decision as to whether that document would be part of the record. In his responding affidavit, the respondent included communications from Justice for Children and Youth. Accordingly, at this time, I do require that the email be considered as part of the record on the stay motion and the appellant’s counsel should forward a copy of that email to the trial coordinator.
[13] During the hearing of the motion on April 16, it became apparent that an exhibit, consisting of some email correspondence, had been appended to the appellant’s reply affidavit in error. A different and earlier email had been the intended exhibit. The appellant submitted that the earlier email should be forwarded to the court and should form part of the record rather than the actual exhibit. I find that Ex. A, appended to the appellant’s reply affidavit, shall not be considered as part of the evidentiary record. I decline to permit the appellant to augment the evidentiary record by serving the earlier email.
[14] The affidavits filed by the parties that were before the motion judge were not part of the evidentiary record on the stay motion.
[15] In situations where the court is operating in normal circumstances, it would not be necessary to list all the material filed as the court record would speak for itself. However, in these unusual times, and given that material is being electronically shared and is not being “filed” in the usual sense, it is important, in my view, to be clear as to the record that is before the court.
THE REASONS OF THE MOTION JUDGE, AND THE ORDER, DATED APRIL 7, 2020
A. Brief Background
[16] The relevant background is discussed by the motion judge. There were two motions that were approved to be dealt with as emergency motions.
[17] The appellant’s motion sought an order to suspend the respondent’s access for three weeks; also, the appellant’s motion sought an automatic review of that suspension on April 17. It was the appellant’s position that during the suspension that the respondent’s access should be by way of video access. The appellant further requested that any missed access be made up by December 31, 2020.
[18] The respondent’s motion sought to continue access in accordance with the existing final order.
[19] The current status quo is a final order dated August 6, 2015. The appellant has custody of the child. The respondent’s regular access schedule is alternating weekends from 6 p.m. Friday to 6 p.m. Sunday and each Wednesday from 4 p.m. to 7 p.m. During his weekend access, the respondent is required to return the child to the appellant, so that the appellant can administer an injection of prescribed medication to the child. The respondent also has other access, including summer and special occasions, as detailed in the final order. There was evidence on the stay motion that the respondent had not been exercising the Wednesday access.
B. The Discussion of the Issues by the Motion Judge
[20] The motion judge succinctly framed the issues, which he found were very narrow, as being whether either home is safer for the child than the other and, if not, whether transporting the child between the parents’ homes presents an additional risk to the child from the COVID-19 virus.
[21] The motion judge discussed the issues and the child’s medical condition at paras. 5-9 of his reasons:
5 By way of background, [the child] suffers from "oligoarticular juvenile idiopathic arthritis" and as part of that condition, has developed "uveitis" which has affected her eyes. As a result, she is required to take medications which include, without limitation, a weekly injection of methotrexate. Methotrexate suppresses her immune system.
6 [The child] is under the care of nine different doctors as a result of these conditions.
7 There is consensus that [the child] is medically fragile and does have an unusually high risk to Covid-19 as a result of her conditions.
8 There is also consensus that [the child] must "stay home".
9 It follows that the very narrow issues for determination are whether either home is safer for [the child] than the other, and if not, whether the act of transporting [the child] to and from the two homes for the purpose of facilitating her access with her father presents an additional risk to her from the Covid-19 virus.
[22] The evidence filed on the appellant’s motion to stay included significant detail regarding the child’s medical condition. It is not necessary to discuss this evidence in these reasons, as the motion judge’s summary discussed above is sufficient.
[23] The motion judge rejected the appellant’s denial that this is a high conflict case and found, based on the evidentiary record before him, that this is a “very high conflict case”; this finding was consistent with the respondent’s characterization of the case: paras. 15, 16.
[24] The motion judge was critical of both parties for the quality of their evidence on the initial return date of the motion, characterizing their material as focussing on the parties venting their frustrations with each other “rather than the critical issue of the safety of [the child]”: para. 22.
[25] Accordingly, the motion judge offered both parties the opportunity to provide additional evidence focussed on the child’s safety in their respective homes and follow-up information from a treating physician as to whether the child could be transported safely between the parents’ respective homes. Both parties took the opportunity to provide better and more focussed evidence as to the core issue of the child’s safety: paras. 23, 24.
[26] As a consequence, more material was filed, including medical reports, resulting in the motions being heard over three days: April 1, 3, 6, 2020.
[27] There were conflicts in the affidavit material that the motion judge was unable to resolve. At para. 25, the motion judge found the material of both parties to be internally inconsistent with both parties making less than full disclosure.
[28] The material before the motion judge contained accusations by each party that the other had exposed the child unnecessarily to risks associated with COVID-19.
[29] The motion judge found that the respondent did unnecessarily expose the child to risks associated with the COVID-19 virus: paras. 26, 31.
[30] The motion judge also found that the appellant unnecessarily exposed the child to the risks associated with the COVID-19 virus, including that the appellant demonstrated a lesser degree of vigilance than the appellant was demanding of the respondent: para. 37.
[31] The motion judge discusses the appellant’s conduct at para. 39-48. This includes, as found by the motion judge, a statement by the appellant that no one had entered the home since March 19 when, in fact, the appellant had allowed one of the child’s friends, and the mother of the child’s friend, into her home: para. 56. The conclusion of the motion judge, based on the evidence before him as to the past conduct of both parties relating to the COVID-19 virus, was that it was not at all clear to the motion judge who the child would have been safer with prior to the hearing of the motions: para. 52.
[32] The motion judge described as a “central issue” whether the appellant or respondent will expose the child to any unnecessary risks in the future: para. 54.
[33] The motion judge reviewed the evidence of both parties as to the steps they were each prepared to take to protect the child from risks posed by COVID-19. The conclusion reached by the motion judge is that each party would be doing everything necessary to protect the child, provided that each party followed through with what that party deposed he or she would do: paras. 58, 64. The only exception was that the motion judge did not agree with the respondent being able to leave the home to buy necessities such as groceries. The motion judge found that this was an unnecessary risk and that a third party could deliver such items: para. 64. The motion judge addressed this point in the conditions that he imposed for the continuation of access.
[34] It was necessary for the motion judge to review the medical evidence in considering the impact on the child in being transported between the parties’ homes.
[35] Reports were filed from the following: the child’s pediatrician, Dr. Awuku; the child’s pediatric ophthalmologist, Dr. Makar; and the child’s pediatric rheumatologist, Dr. Berard.
[36] The medical reports that were before the motion judge were included in the material filed on the appellant’s motion to stay.
[37] Dr. Awuku provided a letter dated April 2, 2020, in response to a request from the appellant’s counsel, Ms. Weisman, asking whether the act of transporting the child from the mother’s home to the father’s home would put the child at greater risk.
[38] The motion judge noted, at para. 68, that it was Dr. Awuku’s opinion that this issue would fall within the scope of the practice of an infectious diseases specialist and rheumatologist.
[39] The motion judge reviewed the evidence of Dr. Makar, at paras. 70, 71:
70 Dr. Makar maintains that [the child] is at a high risk regarding the Covid-19 virus because she is immunocompromised due to the Methotrexate treatment.
71 Dr. Makar candidly acknowledges that due to the novelty of the virus, there is not enough known through medical literature as to the extent of damage from Covid-19 to children with juvenile idiopathic arthritis and uveitis and who are treated with Methotrexate. …
[40] The motion judge quotes the following from Dr. Makar’s report dated April 2, 2020 at page 2, a copy of which is appended to the appellant’s affidavit on the stay motion:
Whoever is looking after [the child] whether it is her mother or father should commit to not leaving the house for the next three weeks and should make arrangement for food and necessary items to be dropped to the house and should report immediately to health workers if any respiratory symptoms should arise.
[41] After the hearing ended on April 3 (which was the second day of the hearing), the motion judge received an email that the respondent had obtained another opinion, being an opinion from Dr. Berard, who is the child’s pediatric rheumatologist as noted earlier. As a result, the motion judge convened the motions for a third day. Each party also filed another affidavit. The motion judge admitted the two new affidavits and a letter from Dr. Berard after hearing submissions as to their admissibility.
[42] The letter from Dr. Berard is dated April 3, 2020 and it is addressed to the appellant’s counsel, Ms. Weisman. The motion judge discusses Dr. Berard’s letter, at paras. 75, 76:
75 Dr. Berard describes [the child] as "mildly immune suppressed". She also states that a child like [the child] may become sicker than someone who is not on immune suppressants but adds there is no literature to support that conclusion at this time.
76 With respect to the issue of transfers of [the child] between the parents' homes, Dr. Berard says that "any transfers should be done in accordance with avoidance of large crowds, social distancing and excellent hand hygiene." In other words, there is no suggestion that the transfers should not be done or that they would put [the child] at any greater risk. That is provided the transfers are done in a manner that does not expose [the child] to people with the virus or things those infected people have come into contact with.
C. The Motion Judge’s Conclusion
[43] In relation to the medical evidence as to the risk associated with the child travelling between her parents’ homes, the motion judge noted Dr. Awuku’s advice that this matter was outside his area of expertise; as between Dr. Berard and Dr. Makar, the motion judge preferred the evidence of Dr. Berard for “two overarching reasons”: paras. 85, 86. The first reason is that Dr. Berard was a rheumatologist and therefore fell within one of the categories – infectious diseases specialist and rheumatologist – as mentioned by Dr. Awuku; the second reason is that the motion judge approached Dr. Makar’s objectivity with some caution as explained in his reasons: paras. 87, 88.
[44] The motion judge weighed the risk to the child being exposed to COVID-19 and balanced that against the consequences of disrupting access to the respondent, which in the motion judge’s opinion would be for “an extensive indefinite period of time”: para. 82. The motion judge states his conclusions as follows, at paras. 89, 90:
89 Based upon Dr. Berard's letter, I conclude that the risk posed to [the child] by transfers from house to house is minimal provided that they are done properly. I reiterate that the respondent father proposes that no one other than himself and [the child] would ever be in the car, the car would be disinfected before and after each trip, and no stops would be made either to or from the applicant mother's house with [the child] in the car. That conclusion finds support in the applicant mother's statement that [the child] must, at Dr. Berard's request, go for walks to assess her mobility threshold. In other words, the evidence supports the conclusion that while [the child] should generally avoid going outside, there may be occasions in which a potential benefit exceeds the risk created by the particular activity and the manner in which that activity is carried out.
90 In weighing the deleterious effects of depriving [the child] of access to her father as against the risks from the Covid-19 virus, I conclude that at least in the short run, [the child]'s access to her father should have priority. That is provided adequate safety precautions are taken both during transportation and within the home.
D. The Motion Judge’s Order
[45] The motion judge ordered that the respondent’s access shall continue in accordance with the final order dated August 6, 2015.
[46] However, the motion judge also imposed a number of conditions, until further court order, to minimize the risk of COVID-19 infection to the child. The conditions included:
(a) the parties were not allowed to have anyone else in their respective homes; in the case of the appellant, the persons allowed in the home would be herself, the child and the appellant’s father, who resided with them; and in the case of the respondent, the persons allowed in his home would be himself and the child;
(b) neither the parties, nor the other occupants of their respective homes, were to leave the home except for a dire emergency or on written medical advice or for the purpose of access exchanges;
(c) each party was to have groceries and other necessities delivered to the home;
(d) the respondent, who was responsible for all access exchanges, was required not to allow at any time anyone else other than the child to be inside his car, nor at any time was he to allow another person to use his car for any reason; and
(e) the respondent was required to disinfect the car before and after each trip with the child; the respondent also was ordered not to make any stops for any reason while the child is in the car; and he was ordered to disinfect the car before using it again to transport the child.
[47] The motion judge included a provision in the order that this matter may be returned for further consideration if:
(a) either party is unable, unwilling or refuses to abide by the terms of the order; or
(b) the rapid progress of the virus and the rapidly evolving information with respect to the virus are such that the child’s best interests would be served by revisiting the issue of access.
[48] Although the motion judge did not seize himself, he ordered that all reasonable efforts should be made to place any return of this matter before him.
THE TEST ON A MOTION TO STAY
[49] In appeals involving custody and access matters, the three-part test for a motion to stay pending appeal is formulated as follows: (1) whether the appeal raises a serious issue that the trial judgment is wrong; (2) whether a child will suffer irreparable harm if a stay is not granted; and (3) whether the balance of convenience favours a stay; further, the overriding consideration, reflected in the three-part test, is the child's best interests, and the court must be satisfied that it is in the child's best interests to order a stay: Lefebvre v. Lefebvre, 2002 17966 (ON CA), [2002] O.J. No. 4885 (Ont. C.A. [In Chambers]), para. 6; see also Berry v. Berry, 2010 CarswellOnt 10983 (Ont. C.A. [In Chambers]).
[50] It is appropriate to elaborate briefly on the “serious issue” test given past decisions of the Court of Appeal for Ontario. I had discussed this issue more fully in McNeil v. Barrett, 2018 ONSC 212 (Div. Ct.)[^1], a case relied on by the respondent.
[51] In Circuit World Corp. v. Lesperance, 1997 1385 (ON CA), 1997 CarswellOnt 1840 (Ont. C.A. [In Chambers]), Laskin J.A. found that “serious issue” is a low threshold and found in that case that the error alleged was far from a frivolous issue: para. 9.
[52] In Ontario v. Shehrazad Non Profit Housing Inc. (2007), 2007 ONCA 267, 85 O.R. (3d) 81 (Ont. C.A. [In Chambers]), MacPherson J.A. relies on Circuit World Corp., supra, stating at para. 19:
19 In Circuit World, Laskin J.A. held that this first part of the test constitutes a low threshold. At p. 677, he wrote that the court "should not extensively review the merits of the appeal," but it must determine that the issues raised are not frivolous or vexatious.
[53] In Fiala Estate v. Hamilton, 2008 ONCA 784, Doherty J.A., after referring to the three-part test, finds in relation to “serious issue” that the appellants in that case need not convince the court that they will win the appeal, or even that they will probably win the appeal, but they must satisfy the court that they have “some reasonable prospect of success”: para. 15.
[54] In Buccilli v. Pillitteri, 2013 CarswellOnt 16731 (Ont. C.A. [In Chambers]), Gillese J.A. cited Fiala Estate, supra, and adopted the test cited therein that the appellants need only show that they have a reasonable prospect of success and that they need not convince the court that they will win the appeal or even probably win the appeal: paras. 34, 35.
[55] In order to establish whether an appeal raises a serious issue, does the moving party have to demonstrate: (a) that the appeal is not frivolous or vexatious?; or (b) that the appeal has a reasonable prospect of success without having to convince the court that the appellant will win the appeal or even probably win the appeal?
[56] In McNeil v. Barrett, supra, I concluded at para. 35 that if there is a difference between the two tests discussed above, that I was bound by the decisions in Circuit World Corp., supra, and Ontario v. Shehrazad Non Profit Housing Inc., supra, as the test adopted in those cases was consistent with the test as stated in RJR-MacDonald Inc. v. Canada (Attorney General) [In Chambers], 1994 117 (SCC), [1994] 1 S.C.R. 311 (S.C.C.).
[57] The appellant relies on Abuzour v. Heydary, 2015 CarswellOnt 5208 (Ont. C.A. [In Chambers]), where Huscroft J.A. discussed, at paras. 26-28, the “serious issue” test referred to in RJR-MacDonald Inc., supra:
26 What is a serious question? Sopinka and Cory JJ. put the matter this way in RJR-MacDonald, at 334:
There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. The decision of a lower court judge on the merits of the ... claim is a relevant but not necessarily conclusive indication that the issues raised in an appeal are serious...
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
27 The Abuzours submit that the serious issue threshold is not met and that the stay should be denied on this basis. They submit that Penny J. rejected all of the arguments raised by Landmann, Wang, and Smith in his January 29 order in strong terms.
28 In my view, this submission fails to appreciate the low threshold at the serious issue step. I need not conclude that the appellants have a strong argument or that they will succeed on appeal. Their appeal is neither vexatious nor frivolous, and that is enough at this stage to allow me to conclude that there is a serious issue to be tried.
[58] Accordingly, to demonstrate that her appeal raises a serious issue, the appellant need only show that her appeal is neither frivolous nor vexatious.
GROUNDS OF APPEAL
[59] The appellant, in her motion for leave to appeal, lists five grounds to be addressed on appeal. The first two grounds state that the motion judge erred in failing to hear from the child in light of the provisions of ss. 24 and 64 of the Children's Law Reform Act and the international requirements of the Convention on the Rights of the Child.
[60] The appellant submits that given the child’s age, the child’s health issues and the increased risk posed to the child by the COVID-19 virus, that the child should have been heard and that her wishes should have been considered.
[61] Implicit in the foregoing grounds of appeal is that the child should have been represented on the hearing before the motion judge.
[62] In the third ground, the appellant submits that the motion judge denied the appellant and the child procedural fairness and natural justice in applying a summary determination process to “issues concerning extreme health issues.”
[63] The fourth ground of appeal is that the motion judge erred in weighing expert evidence without cross-examination and giving more weight to one report rather than another report.
[64] Finally, the appellant submits that the motion judge erred in failing to permit more time to marshall evidence from an infectious diseases specialist.
[65] The grounds of appeal listed in the appellant’s notice of appeal are more detailed but the main grounds of appeal appear to be related to the grounds summarized in the motion for leave to appeal.
DISCUSSION
A. Does the appeal raise a serious issue?
[66] As indicated in Circuit World Corp., supra, at para. 9, the general rule on a motion for a stay is that the court should not extensively review the merits of the appeal. A determination that issues are not frivolous or vexatious is a low standard.
[67] Some brief observations, however, are appropriate. A significant ground of appeal relates to failure of the motion judge to hear from the child or to appoint counsel for the child. However, no request was made before the motion judge to appoint counsel for the child, nor was any request made that the motion judge hear from the child.
[68] The motion judge’s reasons do refer to concerns expressed by the child, as reported by the mother, that the child felt it was too dangerous to leave home. However, the motion judge had concerns as to the weight to be placed on that evidence (reasons, paras. 93-98).
[69] As part of her grounds for appeal, the appellant submits that the motion judge erred in proceeding to decide the motions without cross-examination. The appellant submits there were conflicts in the evidence and medical reports. However, neither party requested the motion judge to permit oral questioning or cross-examination.
[70] Also, context is important. The appellant made a decision to withhold access in contravention of the final order. That conduct created an urgency. It was in the appellant’s interest to have a ruling on the motion to suspend access. Had the appellant requested the appointment of counsel for the child or requested cross-examination or oral questioning, then the most likely result, as submitted by the respondent, would have been an adjournment delaying the appellant’s motion to suspend access. Delay would have been prejudicial to the appellant, who wanted an immediate suspension of the in-person access visits.
[71] Notwithstanding the foregoing, however, I must determine, on the entire motion record, whether the appellant has demonstrated that the appeal is neither frivolous nor vexatious. I find, albeit with some hesitation, that the appellant has met this low threshold.
B. Will the child suffer irreparable harm if a stay is not granted?
[72] The appellant’s request was only for a suspension of access for three weeks until April 17, 2020, with the matter to be reviewed on that date.
[73] The motion judge’s order contained a number of conditions to minimize the risk to the child. Also, and importantly, the order allowed the matter to be returned to the court in certain circumstances, as discussed earlier. These provisions created a safeguard for the child.
[74] In his affidavit on the stay motion, the respondent deposes at paragraph 77 that for the weekend commencing March 27, 2020 that it was the appellant’s evidence that the child did not want to go on the access visit. That would have been the first weekend on which the respondent missed his access.
[75] At paragraph 78 of his affidavit, the respondent deposes that if his daughter does not wish to go on visits, then there will be no access. The respondent concedes, given that the child is age 14, that he cannot force the child to attend for access. He deposes that his only remedy is against the appellant, not the child, and in that event, he would have to bring another motion.
[76] In considering the foregoing, I am not satisfied that the child will suffer irreparable harm if a stay is not granted.
C. Does the balance of convenience favour a stay?
[77] The appellant submits the balance of convenience favours a stay. It will allow more time to obtain further medical evidence. In the meantime, the appellant is committed to facilitating telephone and video access.
[78] The respondent submits that the cessation of access would be for an indefinite period of time at this point. The motion judge was concerned with the potential length of the disruption of the access and the effect that would have on the relationship between the child and the respondent.
[79] Regarding medical evidence, the motion judge was concerned about the paucity of medical evidence as to the risk to the child moving between the parents’ homes. The motion judge, therefore, adjourned the motions to permit the parties to provide more medical evidence to assist the court. While the appellant puts forth a ground of appeal that the motion judge erred in not permitting more time to marshall evidence from an infectious diseases expert, it is also apparent that the motion judge had to take the initiative to coax the parties to assist the court with better medical evidence. I find no indication in the evidentiary record that the appellant asked the motion judge for additional time to obtain a report from an infectious diseases expert.
[80] The appellant submits that she intends to seek leave to introduce fresh medical evidence on the appeal. However, I must consider, on the stay motion, that the motion judge was provided with expert medical evidence from three of the child’s treating specialists. The motion judge’s reasons suggest that he considered carefully the medical evidence that was placed before him.
[81] Taking into account the foregoing, and considering the child’s best interests, I am unable to conclude that the balance of convenience favours a stay.
D. Conclusion on the Motion for a Stay
[82] I decline to grant a stay. However, in the circumstances posed by COVID-19 and the uncertainty as to the return of normal operations of the court or how long it would take to hear the appeal if leave is granted, the order below is subject to a reconsideration of the issue of a stay if leave to appeal is granted.
THE RESPONDENT’S MOTION TO ADMIT FRESH EVIDENCE
[83] The respondent sought, on the stay motion, leave to introduce a report of Dr. Berard (the child’s treating pediatric rheumatologist, as previously noted) dated April 9, 2020, which is after the date of the motion judge’s order. The report was provided to both parties.
[84] The report, properly, was not part of the respondent’s fresh evidence motion. The report was described as setting out recommendations regarding the child’s physical activities and movement in the community.
[85] The appellant was opposed to the admission of the report for reasons including that it could have been obtained earlier.
[86] I note that the motion judge had to reconvene the motions to deal with additional medical evidence.
[87] There was a dearth of evidence explaining why the information contained in Dr. Berard’s report dated April 9, 2020 could not have been obtained earlier. I decline to admit the fresh evidence. However, the order below sets out circumstances where the respondent can bring a further motion for that relief.
THE APPELLANT’S REQUEST TO APPOINT COUNSEL FOR THE CHILD
[88] Although the respondent, in his pleadings, was not opposed to the child being represented by the OCL, this is not a situation where such an order should be made on the stay motion.
[89] If the appellant’s motion is to be interpreted as a request to appoint counsel for the child on the hearing of the appeal, then that relief should await the determination of the motion for leave to appeal.
[90] If the appellant’s intention is to appoint counsel for the child on the stay motion, then I decline to do so on the basis that such an order is not necessary and that it would delay the hearing of the stay motion.
EXPEDITED HEARING OF THE MOTION FOR LEAVE TO APPEAL
[91] The issue expediting the motion for leave to appeal and timelines for filing all necessary documents were discussed with counsel. The order below provides for filing deadlines and that the hearing of the motion for leave to appeal be expedited.
MAKE-UP ACCESS
[92] The respondent had an access weekend that was to start three days after the release of the motion judge’s decision. As discussed earlier, the respondent missed his access on the Easter weekend commencing April 10 because the appellant brought her stay motion initially on April 9 and the motion was adjourned for a week.
[93] The respondent’s next scheduled access weekend commences Friday, April 24.
[94] The order below provides that the respondent’s alternate weekend access shall resume on Friday, April 24, and deals with the issue of a make-up visit.
ORDER
[95] An order shall go as follows:
The appellant’s motion for a stay pending appeal is dismissed subject to paragraph 2.
If leave to appeal is granted, then paragraph 1 of this order is subject to review at the discretion of the panel granting leaving to appeal.
The appellant’s motion to appoint counsel for the child is dismissed, but without prejudice to the appellant’s right to bring a further motion for that relief if leave to appeal is granted.
The respondent’s motion to adduce the report of Dr. Berard dated April 9, 2020 as fresh evidence is dismissed, but without prejudice to his right to bring a further motion for that relief if paragraph 1 of this order is reviewed as provided in paragraph 2 of this order.
The respondent’s alternate weekend access shall resume commencing Friday, April 24, 2020.
The respondent’s missed access on the weekend commencing Friday, April 10, 2020 shall be dealt with as follows:
(a) if the motion for leave to appeal is dismissed, then, unless the parties agree otherwise, the make-up access weekend shall be the first weekend thereafter, which is not the respondent’s regularly scheduled weekend; and
(b) if the motion for leave to appeal is allowed, the make-up access weekend shall be dealt with in the existing proceeding in the Superior Court of Justice at Windsor.
The hearing of the motion for leave to appeal is ordered expedited. The appellant shall file all material required for the hearing of the motion for leave to appeal within ten days of the date of this order and the respondent shall file his material within 20 days of the date of this order.
If the parties have resolved the issue of costs, they shall advise the trial coordinator. If the parties are unable to agree on costs, then the parties may forward written costs submissions in electronic format to the trial coordinator within 30 days of the date of this order. The written costs submissions are limited to three typed pages, double-spaced, plus copies of any offers, bills of costs, time dockets and authorities.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: April 22, 2020
[^1]: See McNeil v. Barrett, supra, at paras. 21-35.