[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): G.S. v. S.B., 2023 ONSC 1542
COURT FILE NO.: DC-23-2764
DATE: 2023/03/06
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
G.S.
Applicant/Appellant
– and –
S.B.
Respondent/Respondent in Appeal
Gary Joseph, for the Appellant
Tamara Scarowsky, for the Respondent in Appeal
HEARD: February 27, 2023
REASONS on motion for stay pending appeal and motion for security for costs
RYAN BELL J.
Overview
[1] The appellant, G.S. (the “father”), moves for a stay pending appeal of the trial judge’s December 15, 2022 final order (the “Order”).
[2] The Order directed that J.’s primary residence be with the respondent, S.B. (the “mother”), with graduated, increasing parenting time to the father, subject to the father meeting certain preconditions to progress to the next stage. The trial judge also made an order granting the mother sole decision-making authority over J., as well as an order regarding on-going child support. The submissions on the motion for a stay focused on the aspects of the Order that pertain to the parenting of J.
[3] The mother opposes the request for a stay and moves for security for costs of the trial and the appeal.
[4] For the reasons that follow, the motion for a stay pending appeal is dismissed. Security for costs of the appeal is ordered in the amount of $30,000. No security for costs of the trial is ordered at this time.
The Litigation and the Trial Judge’s Findings
[5] The parties met in 2011. They had an on again/off again relationship for a couple of years and lived together briefly from the fall of 2012 to April 2013. The mother discovered she was pregnant in April 2013. By mutual agreement, she moved out of the father’s home and moved into a townhome she shared with her mother.
[6] J. was born in December 2013. For approximately the first two years of J.’s life, he lived in the primary care of the mother. However, by the time J. was approximately 2.5 years old, there was a shared parenting regime, which continued until the summer of 2017.
[7] The mother was hospitalized for a week in July 2017 because of a mental health crisis. After her release from hospital, the father would not agree to reinstate the 50/50 parenting schedule. Instead, the father insisted that the mother’s access with J. be supervised by him or by the mother’s father.
[8] The father filed his original application on July 17, 2017, the same day the mother was released from the hospital.[^1] During the litigation, several orders were made concerning the parties’ communications and parenting time with J. On May 23, 2018, I granted a temporary order on consent of the parties for sole custody and primary residence of J. to the father, with supervised access to the mother, either by the father or the Supervised Access Centre at Family Services Ottawa. Paragraph 5 of my order provided that “the parties shall review the issue of access, with a view of increasing access, once the Respondent mother has successfully completed a rehabilitation program and can demonstrate that she is no longer under the influence of illegal substances and/or alcohol.”
[9] The mother attended a residential treatment facility in July or August 2018; however, her access was not revisited. In January 2020, the mother entered detox for alcohol abuse and attended a residential treatment program in February 2020. She has remained free of substances but for a one-day alcohol relapse in June 2020.
[10] In December 2020, Parfett J. made a temporary order, providing for the mother to have unsupervised parenting time with J. on a gradually increasing basis by March 2021. Justice Parfett also granted a temporary order restraining the father from contacting the mother except by Our Family Wizard or to facilitate telephone calls with J.
[11] A s. 30 Children’s Law Reform Act[^2] parenting assessment report was completed in December 2021.
[12] The matter was originally scheduled to proceed to trial in January 2022. The matter was adjourned at the request of the father to the May 2022 trial sittings, peremptory to the father. However, the matter was not reached in May 2022 and the trial was then rescheduled to August 2022.
[13] On July 12, 2022, Audet J. granted a temporary order increasing the mother’s parenting time on alternating weekends, extending her time to Tuesday morning at 8:30 a.m. on the August long weekend, and providing the mother with a week of summer vacation.
[14] The trial commenced on August 2, 2022 before Engelking J. On August 4, 2022, following three days of dealing with evidentiary issues relating to an 875-page document the father served on the mother on the eve of trial,[^3] the father had a medical health crisis. On August 5, 2022, the trial was adjourned to the September 2022 trial sittings. As a term of the adjournment, the trial judge made a temporary order that the parties would have parenting time on a week on/week off basis, with exchanges to take place on Fridays.
[15] Immediately prior to the resumption of the trial, the mother moved for an order for the appointment of amicus curaie. The father did not appear at the September resumption of the trial. The trial judge heard the motion for the appointment of amicus in writing and made an order for the appointment of amicus. The trial was then adjourned to the next trial sittings for the amicus to become acquainted with the matter. On October 3, 2022, the trial judge released an endorsement setting out additional terms of the adjournment.
[16] The father then moved for an order that the trial judge recuse herself from hearing the trial. On October 31, 2022, the trial judge dismissed the father’s motion.
[17] The trial resumed on November 29, 2022. With one exception, the father did not attend: on December 1, 2022, the father joined the proceedings for a discussion with counsel only on the role of and his dissatisfaction with amicus.
[18] At the end of the trial on December 2, 2022, the mother sought an urgent order placing J. in her sole care pending the release of the trial decision and requested an order for police enforcement. The mother’s week of parenting time was to commence on Friday December 2, 2022, at 6 p.m. and the father was messaging her that she would not be able to retrieve J. The trial judge granted the urgent order.
[19] In her reasons for decision, the trial judge found that,
[a]lthough the dynamics of the relationship certainly pre-existed S.B.’s initial hospitalization, the case began in earnest, both literally and factually in terms of G.S.’s control of J., in July of 2017... after S.B. was hospitalized for a period of one week, G.S., with no legal authority, refused to resume the shared parenting schedule which had been in place prior to S.B.’s hospitalization. From that date forward, to Friday, December 2, 2022, G.S. has used his physical control over J. to exert control over S.B.
[20] At paragraph 3 of her reasons, the trial judge summarized:
This is quite possibly the worst case of a pattern of coercive and controlling behaviour by the Applicant father, G.S., towards the Respondent mother, S.B., that I have ever seen. The family violence perpetrated by G.S. has been serious and unrelenting for 11 years. The child who is the subject of this proceeding J.C.B.S. (hereinafter referred to as “J.”), who is almost nine years of age, has been emotionally harmed by it and continues to be at risk of emotional harm from it. G.S. is incapable of recognizing it and has taken no steps to prevent further family violence from occurring or to improve his ability to care for and meet the needs of J.
[21] The trial judge found this to be a case in which many of the indicators of alienation are present:
These include allowing the child to make decisions about contact, being unconcerned for S.B.’s missed parenting time, conveying distain or disapproval of activities engaged in by J. with S.B., portraying himself as J.’s “only parent”, portraying S.B. as dangerous, exaggerating S.B.’s negative attributes and ignoring her positive ones, repeating a delusional or distorted history of S.B.’s involvement, requiring J. to secretly call him late at night when in S.B.’s care, and conveying hurt to J. when he does not immediately respond to him.
The Appeal
[22] On his appeal, the father asks that the Order be set aside and that an order be made directing that J. be placed in the “immediate primary care” of the father and that the father be granted sole decision-making with respect to J., with the mother to have reasonable parenting time with J. as determined between the parties or as determined by the court. In the alternative, the father requests a new trial of the issues before a justice other than the trial judge.
[23] The father advances eight grounds of appeal:
The trial judge erred in law by not ensuring that the father received a fair trial, including the opportunity to fully present his case to the court. The father was denied natural justice given the procedure and process of the trial.
The trial judge erred in law in failing to “properly voir dire” the admissibility of all, or at least parts of the father’s clinical psychologist’s evidence such that the trial judge would have an expert’s opinion with respect to the father’s mental health, a matter upon which she commented negatively in her reasons.
The trial judge erred in her application of the best interests test under the Children’s Law Reform Act, and failed to reference any of the relevant provisions of s. 24(3) other than those relating to family violence.
The trial judge failed to recognize and apply recognized case law relating to the importance of the status quo with respect to parenting existing prior to the trial.
The trial judge made inconsistent rulings with respect to evidence and the admissibility of evidence, thereby erring in law. The trial judge ruled that evidence relating to events prior to 2018 were irrelevant but permitted the admission of evidence from the mother relating to events that occurred in 2016.
The trial judge applied a double standard with respect to the admission and application of evidence. Concerns with respect to parenting by the mother were found to be historical and irrelevant while historical concerns relating to parenting by the father were deemed relevant.
The trial judge erred in relying on historical evidence offered by the mother’s psychologist notwithstanding the fact that it had been more than a year since the mother attended the psychologist and there were serious mental health issues relating to the mother that “demanded up to date expert evidence.”
The trial judge erred in imputing income to the father in the absence of an adequate evidentiary basis, contrary to the established jurisprudence.
Evidentiary Issues
[24] Two related evidentiary issues were raised at the hearing: (i) the mother takes issue with the affidavit of Dr. Dino Zuccarini, sworn February 9, 2023, filed on the father’s behalf on the motion to stay; and (ii) the father objects to the admissibility of the affidavit of Dr. Emma Katz, sworn February 16, 2023, filed on behalf of the mother on the motion to stay.
[25] On August 5, 2022, the trial judge released an endorsement in which she found that Dr. Zuccarini did not meet the test for threshold admissibility and would not be permitted to testify at trial. The trial judge also concluded that,
[e]ven if he did meet the threshold test, which he does not for the reasons stated, I would find, in my gatekeeper function, that the risks associated with Dr. Zuccarini’s biased, unbalanced opinions based on almost exclusively on [sic] what he has been told by Mr. S. for five years far outweigh any benefit his evidence would provide.
[26] One of the father’s grounds of appeal is the trial judge’s alleged failure to “properly voir dire” the admissibility of Dr. Zuccarini’s evidence.
[27] In his February 9, 2023 affidavit, Dr. Zuccarini reports that he has had occasion to observe three videos of J. taken on January 12, 2023. He states that, based on his observations, he reported to the Children’s Aid Society that the trial judge’s decision has “brought about serious emotional harm to the child and is akin to a form of abuse, and not in the best interest of the child.” In addition, he states, “[f]urther removal of J. from his school and all of his friendship network and GS’s family will also create serious emotional harm and seems to have occurred with no recognition of the impact of this on J’s mental health and psychological well-being.”
[28] In her endorsement, the trial judge found that Dr. Zuccarini is not independent: “he appears to have been retained by Mr. S. to act in the role of a litigation expert in the guise of a participant expert; nor is Dr. Zuccarini impartial.” The trial judge noted that Dr. Zuccarini relied “almost entirely on information provided to him by Mr. S. ... to opine on J.’s state of being.” On a motion to stay, the result of the trial is to be treated as prima facie correct: K.K., at para. 25; Circuit World, at para. 13. In my view, the same is true with respect to the trial judge’s ruling that Dr. Zuccarini would not be permitted to testify at trial because he lacks impartiality. I therefore place no weight on his February 9, 2023 affidavit.
[29] Dr. Katz’s affidavit is proffered for the purpose of attaching two research papers on the subject of coercive control and domestic violence. The mother submits that the research papers will “assist the court in understanding the context” in addressing the reliability of the evidence on the issue of irreparable harm. Because she has not met either party, and she has not met J., I cannot agree with the father’s submission that Dr. Katz is, essentially, a participant expert. Dr. Katz’s evidence is seemingly in response to that of Dr. Zuccarini on whose affidavit I place no weight. Because of this, and the fact that Dr. Katz’s affidavit does not include the required acknowledgement of expert’s duty, I have disregarded Dr. Katz’s affidavit in determining whether a stay pending appeal should be granted.
The Motion for a Stay Pending Appeal
[30] In determining whether to stay an order involving the parenting of a child, the court must consider: (i) whether, on a preliminary assessment, the appeal raises a serious question, recognizing that this is a low threshold; (ii) whether the child will suffer irreparable harm if a stay is refused; and (iii) the balance of convenience, that is, whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal. The overriding consideration is the best interests of the child. The court must be satisfied that it is in the child’s best interests to grant a stay: D.C. v. T.B., at para. 9;[^4] K.K. v. M.M., at para. 17;[^5] Lefebvre v. Lefebvre, at para. 6;[^6] Circuit World Corp. v. Lesperance, at paras. 8-9.[^7]
[31] The standard for appellate review of a parenting decision is exacting: Bors v. Bors, at paras. 18-20.[^8] The function of the appellate court is not to retry the case on appeal. Intervention is warranted only if there is a material error, a serious misapprehension of the evidence, or an error of law: D.C., at para. 10.
[32] I am not persuaded that a stay of the Order pending appeal is in the best interests of J. On the merits of the appeal, I begin by observing that parenting decisions are inherently exercises in discretion and the factual findings in connection with the decision are entitled to deference on appeal: Van de Perre v. Edwards, at para. 13;[^9] A.M. v. C.H., at para. 4.[^10]
[33] In his grounds of appeal, the father focuses on his non-participation at trial which, he submits, resulted in an unfair trial. The trial transcripts disclose the accommodations provided by the trial judge to the father. The accommodations included: agreeing to end each day at 4:30 p.m.; giving the father clear step-by-step instructions; accepting his request to provide the trial judge with a new opening statement, in writing, after he had delivered an oral opening statement; allowing the father to record the trial; giving the father breaks when necessary; accepting the father’s 875-page affidavit as his evidence in chief, subject to objections and evidentiary rulings; and adjourning the trial from August to September 2022 to give the father a chance to get his blood pressure stabilized.
[34] In her August 5, 2022 endorsement, the trial judge made clear that the adjournment to September 2022 was so that the father could attend to his health needs, not for the purpose of the father retaining counsel. The trial judge noted that the father had had since at least January 2022 to retain counsel.
[35] In addition, on September 22, 2022, the trial judge made an order appointing amicus. As previously noted, when the trial recommenced in November 2022, the father was not present. However, the amicus reported on her communications with the father in anticipation of the resumption of the trial. The trial continued and was completed in the absence of the father.
[36] A trial judge is entitled to manage the trial and control the procedure to ensure that the trial is effective, efficient, and fair to both sides: R. v. Snow, at para. 24.[^11] The trial judge provided the father with accommodations. The father had had ample time to retain counsel. In my view, the ground of appeal that the trial was conducted unfairly is weak.
[37] The trial judge provided written reasons for excluding the testimony of Dr. Zuccarini. There is no obvious error. The father alleges that the trial judge erred in her application of the best interests test under the Children’s Law Reform Act and failed to recognize the importance of the status quo in relation to parenting prior to trial. The father further alleges that the trial judge erred in law with respect to the admission and application of the evidence. The trial judge provided comprehensive reasons for her decision. Again, there is no obvious error. Indeed, with respect to the ground alleging that it had been more than a year since the mother had seen her psychologist, the allegation is contrary to the evidence. In my view, these grounds of appeal are also weak: they appear to be an attempt by the father to relitigate the case on appeal.
[38] Finally, the father alleges in the appeal that the trial judge erred in imputing income to the father in the absence of an adequate evidentiary basis. The evidence before the trial judge as to the father’s income was indeed limited because the father had not complied with court orders requiring him to disclose this information. In my view, this ground of appeal is very weak.
[39] The father is not seeking a return to the status quo before the Order was made. It must be remembered that on December 2, 2022, the trial judge granted an urgent, temporary order to the mother that J. be placed in her sole care pending the release of the trial judge’s decision. That was because the father had been messaging the mother that she would not be able to retrieve J. for the mother’s week of parenting time. The status quo was each party having parenting time on a week on/week off basis as a result of the trial judge’s temporary order made August 5, 2022.
[40] Instead, what the father seeks on his appeal is that J. be placed in the father’s immediate primary care, with sole decision-making to the father, and the mother to have reasonable parenting time with J. “as determined between the parties or as determined by the court.” On the motion for a stay, the father seeks an order staying the Order, returning J. to the father’s care and “the existing status quo” prior to the commencement of the trial.[^12] Either way, the father seeks to stop the process which began the day the Order was made. Staying the Order would disassemble the structure the trial judge put in place in J.’s best interests and would run the risk of undoing the very benefits the trial judge fashioned the Order to achieve: K.K., at para. 28; D.C., at para. 13.
[41] On February, 14, 2023, the Children’s Aid Society advised the parties that it had closed its file as a result of the Order which “mitigates the child protection concerns.”
[42] The affidavit from the therapist, jointly retained by the parties, notes J.’s confusion and sadness as a result of his father’s absence. During the second session, the therapist noted that J. appeared less tearful and “better adjusted overall.” During the last two sessions, while continuing to express sadness over not being able to see his father, J. indicated that he was enjoying time with his mother and was becoming more popular at his new school.
[43] There is no question that J. misses his father. The collateral affidavits relied on by the father on this motion attest to that. At the same time, J. is adjusting to the transition. The trial judge noted that, on shared parenting, she would have had no difficulty finding that, if left to his own devices, J. would readily settle into such a schedule, but that “J. knows, however, that his father requires him to be unhappy with that schedule.” The trial judge found that the father has psychologically harmed J.,
by requiring him to incessantly telephone him or receive his telephone calls while in S.B.’s care, thereby interfering with her parenting time, by causing him to secretly call him after S.B. has gone to bed, by requiring J. to immediately respond to his (G.S.’s) need to hear from him and to apologize for not having done so and/or for hurting him, by requiring J. to constantly insist (from 6 years of age) that he does not want 50/50, by messaging to J. that time with his mother or things his mother does are negative, by keeping J. from his mother contrary to existing court orders, by keeping J. from school when he should be with his mother, and by messaging to J. that he (G.S.) is unwell and J. needs to look after him (as he messaged to J. about his parents in Greece, as was noted by Ms. Hasbani).
[44] This finding, entitled to deference on appeal, led the trial to observe that “[t]hese are, therefore, not normal circumstances.” The trial judge structured the Order in J.’s best interests and there is no evidence of significant emotional harm or risk of harm to J. as a result of the Order. To stay the Order would be highly disruptive to J. and would not be in his best interests.
[45] For these reasons, the father’s motion for a stay pending appeal is dismissed.
The Motion for Security for Costs
[46] The mother seeks security for costs of the trial and the appeal in the amounts of $100,000 and $30,000, respectively, under r. 61.06(1) of the Rules of Civil Procedure.[^13] Rule 61.06(1) provides:
In an appeal where it appears that,
(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
(b) an order for security for costs could be made against the appellant under rule 56.01; or
(c) for other good reason, security for costs should be ordered,
a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
[47] Rule 61.06(1) requires a two-stage analysis: first, the respondent must show that they meet the terms of the rule; second, the motion judge must “take a step back” and consider the justness of the order sought in all the circumstances, with the interests of justice at the forefront: Yaiguaje v. Chevron Corp., at para. 24;[^14] Heidari v. Naghshbandi, at para. 6(2).[^15]
[48] In considering the justness of the order sought, relevant factors include the merits of the appeal, any delay in moving for security for costs, the impact of actionable conduct by the respondent on the available assets of the appellant, access to justice concerns, the public importance of the litigation and the amount and form of security sought by the respondent: Yaiguaje, at para. 24; Heidari, at para. 6(3). An order for security for costs is intended to provide “a measure of protection” to the respondent for the costs to be incurred on the appeal, without denying the appellant a chance to pursue an appeal: Heidari, at para. 6(4).
[49] When an appeal involves the wellbeing of a child, their best interests must be considered in every step of the proceeding; Lenihan v. Shankar, at para. 35;[^16] Morwald-Benvenides v. Benvenides, at para. 13.[^17]
[50] With these general principles in mind, I turn to consider the mother’s motion under r. 60.01(1)(b) and r. 56.01(1)(c) which allows the court to order security where it appears that the party seeking security has an order against the responding party for costs in the same or another proceeding that remain unpaid in whole or in part.
[51] It is not in dispute that the mother has three costs orders against the father in these proceedings that remain unpaid in whole or in part: (i) the order of Parfett J. dated February 16, 2021, in respect of which approximately $10,000 remains outstanding (plus interest); the Divisional Court order dated April 9, 2021 in the amount of $2,500, all of which remains outstanding; and (iii) the order of Audet J. dated September 15, 2022, all of which remains outstanding.
[52] As for the justness of an order for security for costs, I have considered all the circumstances, which include the following. First, the father states that he owns a home in Ottawa “with significant equity.” If he has adequate means to pay these outstanding costs awards, and has chosen not to do so, he is a litigant who has wilfully refused to comply with orders of the Family Court and the Divisional Court: Graham v. Sherman, at paras. 22-23.[^18]
[53] Second, at the conclusion of the trial, the trial judge made a temporary order placing J. in the mother’s sole care, with a police enforcement clause. The trial judge explained in her reasons for decision that she made the order because the messaging coming from both the father and seemingly J. was that the mother would not be able to get J. in her care at 6:00 p.m. Friday as ordered by the court: “[t]here is no doubt that G.S. has been taking steps to, if not alienate, then seriously interfere in S.B.’s relationship with J.” The trial judge observed that the father’s efforts had become more pronounced at times when he perceived a risk of the mother succeeding in obtaining more time with J., including since the trial judge’s August 5, 2022 temporary order for week about parenting time.
[54] Third, the Order includes a staged approach for the father to increase his parenting time with J. subject to the father meeting certain preconditions to progress to the next stage, including seeing a new therapist and taking parenting courses; there is, however, no evidence of the father’s compliance. Had the father complied with the preconditions, he would be in a position to have unsupervised parenting time with J. within days.
[55] Fourth, in late February 2023, the father’s supervised contact with J. was terminated by the provider because of the father’s recording of the sessions, contrary to the service agreement.
[56] Having regard to these circumstances, and taking into account the weakness of the appeal, I find it is appropriate that the father post security for costs of the appeal in the amount of $30,000. In my view, this amount – with which the father does not take serious issue – provides the appropriate measure of protection to the mother for the costs to be incurred on the appeal, without denying the father the chance to pursue his appeal.
[57] I am not, however, persuaded that it would be appropriate to order the father to post security for costs of the trial because costs of the trial have not yet been determined. Accordingly, I dismiss the mother’s motion seeking security for costs of the trial, without prejudice to the mother renewing her motion after the trial judge has determined costs of the trial.
Conclusion
[58] The motion for a stay pending appeal is dismissed. The father is ordered to pay into court the amount of $30,000 as security for costs of the appeal. If the security is not paid into court within 30 days, the mother may move to have the appeal dismissed. The balance of the mother’s motion is dismissed, without prejudice to a motion seeking security for costs of the trial following the trial judge’s determination of costs.
[59] In the event the parties are unable to agree on the costs of the motions, they may make written submissions limited to a maximum of three pages, exclusive of relevant attachments. The mother shall deliver her costs submissions by March 20, 2023. The father shall deliver his responding costs submissions by April 3, 2023. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Madam Justice Robyn M. Ryan Bell
Released: March 6, 2023
CITATION: G.S. v. S.B., 2023 ONSC 1542
COURT FILE NO.: DC-23-00002764
DATE: 2023/03/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
G.S.
Applicant/Appellant
– and –
S.B.
Respondent/Respondent in Appeal
REASONS ON MOTION FOR STAY PENDING APPEAL
AND MOTION FOR SECURITY FOR COSTS
Ryan Bell J.
Released: March 6, 2023
[^1]: The father’s application was subsequently amended in September 2020 and again in December 2021. [^2]: R.S.O. 1990, c. C.12. [^3]: Contrary to Audet J.’s trial management endorsement dated July 11, 2022. [^4]: 2021 ONCA 562. [^5]: 2021 ONCA 407. [^6]: 2002 17966 (ON CA), 167 O.A.C. 85. [^7]: (1997), 1997 1385 (ON CA), 33 O.R. (3d) 674 (C.A.). [^8]: 2021 ONCA 513. [^9]: 2001 SCC 60. [^10]: 2019 ONCA 764. [^11]: (2004), 2004 34547 (ON CA), 73 O.R. (3d) 40 (C.A.). [^12]: The father’s factum, at para. 52. [^13]: R.R.O. 1990, Reg. 194. [^14]: (2017), 2017 ONCA 827, 138 O.R. (3d) 1 (C.A.). [^15]: 2020 ONCA 757. [^16]: 2021 ONCA 142. [^17]: 2017 ONSC 3786 (Div. Ct.). [^18]: 2017 ONSC 5951.