Court File and Parties

Citation: E.M v. C.V., 2023 ONSC 5007 Divisional Court File No.: DC-23-00002767-0000 Date: 2023-09-01

Superior Court of Justice – Ontario Divisional Court

Re: E.M., Appellant And: C.V., Respondent

Before: Mew J. Heard: No appearances; in writing

Endorsement

[1] The appellant seeks a stay, on an urgent basis, pending appeal of certain aspects of a decision of Carter J. dated 13 December 2022 and reported at 2022 ONSC 7037.

[2] Specifically, she asks the court to make an order that has the effect of directing that the children, L.V. and V.V. should continue their education at Rockcliffe Park Primary School pending the outcome of her appeal.

[3] The appellant’s request for an urgent stay was communicated to the court on 30 August 2023. The new school term commences 5 September 2023, hence the expressed urgency of the appellant’s request.

[4] Carter J.’s decision provided, at para. 87, that:

The parties will consult each other via Our Family Wizard on all decisions respecting their children, including extracurricular activities, health, education, and religion. Failing agreement, the Father shall have final decision making authority.

[5] There was an attendance before MacEachern J. on 28 August 2023. Paragraph 2 of her endorsement is as follows:

2. The Applicant’s Form 14B motion dated August 14, 2023 seeking leave to bring a procedural motion to determine urgency regarding the child’s school is denied because:

a. The Applicant seeks the court’s intervention to stop the Respondent father from changing the children’s schools. But under the existing final order on parenting (Justice Mackinnon’s order dated Jan 24, 2021, as changed by Justice Carter’s decision dated December 13, 2022), the Respondent has final say on decisions for the children if the parties do not otherwise agree.

b. The Applicant mother has also not brought a motion to change Justice Carter’s December 13, 2022 order, despite my endorsement of June 26, 2023 which explains that the parenting issues have been resolved by final order, which means that if the mother seeks to change those final parenting orders, she needs to start a motion to change.

c. Part of what the Applicant asks for in her motion is to stay paragraph one of Justice Carter’s December 13, 2022 decision, which is the paragraph that gives the father final say. But there is no basis to grant a stay because there is no evidence before me that the mother has appealed Justice Carter’s Dec 13, 2022 decision and, even if she had, any motion to stay parts of that order should be directed to the court determining the appeal, which is not this court.

d. Justice Doyle’s endorsement of April 11, 2023, does not change any of the above.

e. Again, I refer the Applicant to my endorsement for June 26, 2023. In the absence of a successful appeal process, if the Applicant seeks to change the parenting terms of Justice Carter’s order, she needs to commence a motion to change.

[6] The test for obtaining a stay of an order raises similar considerations to an interlocutory injunction. There must be:

a. A serious issue to be tried (in the present case, on appeal);

b. An assessment of whether irreparable harm would occur if the stay is refused; and

c. An assessment of the balance of convenience.

[7] The appellant, who is self-represented, has provided an affidavit which addresses her concerns about the pending change of the children’s schooling. No doubt similar concerns were expressed when the parties appeared before MacEachern J. The respondent’s lawyer, in an email to the court, observes that “[E.M.] has tried to raise this identical issue before Justice MacEachern who specifically ruled decided on August 28, 2023 that exactly the same issue was not urgent.”

[8] To the extent that there is now urgency in the request made, it is an unfortunate consequence of the request to stay part of Carter J.’s order being made just days before the children return to school. Furthermore, as has been pointed out, the same substantive issue as the request for a stay raises, has already been considered by MacEachern J.

[9] While there is, indeed, a pending appeal of Carter J.’s order, the timing of the appellant’s request for a stay renders it impossible for the court to properly – and fairly – consider the request prior to the beginning of the school term.

[10] The request for determination of her motion for a stay of proceedings on an urgent basis is therefore denied.

Mew J.

Date: 1 September 2023