Court File and Parties

CITATION: Lenihan v. Shankar, 2020 ONSC 8012

COURT FILE NO.: 630/20

DATE: 20201218

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Lenihan v. Shankar

COUNSEL: Ms Shankar, self-represented appellant / respondent Andrew Chris, for the respondent / applicant

BEFORE: D.L. Corbett J.

DATE: December 18, 2020

CASE MANAGEMENT ENDORSEMENT

D.L. Corbett J.

[1] On December 10, 2020, McGee J. granted (among other things) custody of the parties’ daughter to Mr Lenihan and permitted Mr Lenihan to relocate the daughter to live with him in the State of Oregon in the United States of America.

[2] By email received by Divisional Court staff shortly after 1:00 pm, Friday December 18, 2020, Ms Shankar advised that she intends to appeal the judgment of McGee J., and asked to bring an emergency motion to stay the judgment so that the parties’ daughter will not be removed from Ontario pending appeal. Court staff sought further information from Ms Shankar, and the matter was brought to my attention as an emergency shortly after 4 pm. I directed staff to try to schedule an emergency teleconference with counsel for the respondent and Ms Shankar so that I could give directions pending any motion that might be brought by Ms Shankar. Mr Chris responded to the email advising that he could be available. No response was received from Ms Shankar. I draw no inference from Ms Shankar’s lack of response: there could be any number of reasonable explanations for that. However, I am left with this urgent request and nothing before me but the limited materials sent to the court by the appellant by email.

[3] I decline to order an interim stay pending further directions for the reasons set out below. Ms Shankar may still bring a motion for a stay pending appeal, on proper materials, and the court will consider scheduling an urgent teleconference to schedule that urgent motion upon receipt of proper motion materials from Ms Shankar.

[4] I decline to order an interim stay for the following reasons. First, it appears that Ms Shankar is appealing a final order of the Superior Court of Justice. It appears that the appeal lies to the Court of Appeal and not to this court. If I am correct on this point, then this court has no jurisdiction to grant a stay pending appeal; the stay motion and the appeal will have to be brought in the Court of Appeal. The appellant may have been confused about proper routes of appeal because McGee J. used to sit as a Unified Family Court Judge in the Unified Family Court in the Central East Region. Appeal from a final order of the Unified Family Court comes to this court; most appeals from final orders of the Superior Court of Justice go to the Court of Appeal. McGee J. now sits as a Superior Court Justice in Brampton, which is where this trial judgment was made.

[5] Second, it appears to me that the premise of the stay motion is that the appeal will be frustrated if Mr Lenihan is permitted to move to the State of Oregon with the parties’ daughter. Mr Lenihan attorned to the jurisdiction of the Ontario Superior Court (indeed, he was the applicant). There is no evidence that the State of Oregon would not recognize the final disposition of an appeal in this case. The appellant will need to provide some evidence to show that the appeal will be frustrated if Mr Lenihan moves to Oregon pending hearing of the appeal – and this is not shown by the appellant baldly asserting that it will be “impossible” to get the parties’ daughter back to Ontario if the appeal court so orders.

[6] Third, on the balance of convenience it is important that the moving party explain what she says will happen if the judgment is stayed pending appeal. Mr Lenihan and the parties’ daughter were living in a hotel during the trial. Mr Lenihan is ordinarily resident in Oregon. Even on an expedited basis, an appeal in this case would be months from a hearing, at minimum. It can hardly be reasonable to expect Mr Lenihan to remain in Ontario in temporary accommodation for the many months that may be required before the appeal is heard on the merits.

[7] These reasons explain why I am not prepared to intervene now, on inadequate motion materials and no opportunity for the respondent to provide responding materials. This decision is without prejudice to the stay issue on review of complete motion materials from the appellant, including materials that address the court’s points of concern stated above.

D.L. Corbett J.

Date: December 18, 2020