Citation
CITATION: Craige v. Hall, 2024 ONSC 5214
DIVISIONAL COURT FILE NO.: 561/24
DATE: 20240920
Superior Court of Justice – Ontario
Divisional Court
RE: MICHAEL CRAIGE, Applicant -and- SUTANDY HALL, Respondent
BEFORE: FL Myers J.
READ at Toronto: September 19, 2024
Triage Endorsement
[1] The applicant Michael Craige applies to this court to seek leave to appeal two orders of Justice K.D.M Leef dated April 29, 2024 and August 30, 2024 respectively. Mr. Craige needs to obtain an extension of time to seek leave to appeal the earlier order because he is months beyond the allowed time to do so. According to his preliminary materials as filed, he also wants leave to deliver fresh evidence.
[2] Mr. Craige lives in the State of Georgia in the US. Ms. Hall lives in Ontario.
[3] On November 23, 2023, Leef J. made an order at the request of Ms. Hall granted her interim parenting and primary care for the parties’ child. The motion and order were made without notice to Mr. Craige.
[4] On a return motion in which both parents participated with counsel, Mr. Craige contested the jurisdiction of the courts of Ontario. In her decision dated April 29, 2024, Leef J. held that the court has jurisdiction to consider and rule on parenting issues under both s. 22 and, if necessary, s. 23 of the Children’s Law Reform Act. She also confirmed the interim parenting order that she had made previously ex parte.
[5] On August 20, 2024, in response to another urgent motion without notice, the same judge explained events that led to the August 30, 2024 order that Mr. Craige also seeks to appeal:
[Ms. Hall] discloses in significant detail the events of July 4, 2024 which resulted in her arrest at the Detroit boarder [sic]. The arrest was on charges of “kidnapping” the child notwithstanding the fact that the child was ordered to remain in her primary care pursuant to my Order of April 27, 2024. The Ontario Court has assumed jurisdiction over the child and the Orders made must be followed.
The Respondent has had the child in his care since July 4, 2024. He has not facilitated any contact between the Applicant and child. Despite being represented by counsel, he has failed to indicate when he intends to return the child to the Applicant’s care. He is breaching the existing Court Order. His actions are contrary to the child’s best interests.
The Respondent is required to strictly comply with the existing Order and return the child to the care of the Applicant as per the existing Order.
[Emphasis added.]
[6] In her decision dated August 30, 2024, that is challenged by Mr. Craige, the judge explained:
Matter set for a review of my ex parte Order. Both parties are present with counsel and materials have been filed for the review.
The Ontario Court has previously assumed jurisdiction over the child. That Order has not been appealed and remains in full force and effect.
Subsequent to the release of this Court’s Endorsement regarding jurisdiction in April 29, 2024, the Respondent, by his words and conduct, attorned to the jurisdiction of the Ontario Court, indicated that he did not wish to continue with the litigation and sought to engage in mediation. Unfortunately, that mediation did not take place before the events of July 4, 2024.
Unbeknownst to the Applicant, on December 5, 2023, a warrant was issued against the Applicant by the Court in Georgia, at the behest of the Respondent, on charges of kidnapping.
On July 4, 2024, the Applicant was travelling with her two children and current partner to the Detroit airport to catch a flight to visit the child’s maternal grandfather in Florida. While attempting to cross the border, the Applicant was surrounded in her vehicle by multiple officers and arrested and handcuffed in front of the children. The Applicant then spent approximately 15 days in custody, travelling from Detroit to Georgia, stopping in Kentucky along the way. Once she reached Georgia, she was released by the Court on conditions and has since returned to Ontario. During this time, she was either detained in the general population at the jail or in the back of a prison transport vehicle.
The authorities at the Detroit border refused to allow the child to remain in the care of the stepfather. The child was therefore placed in foster care until being picked up by the Respondent at 3:00 a.m.
The Respondent is now attempting to take advantage of the situation to justify overholding the child contrary to the Order made by this Court. At the time of her arrest, the Applicant was travelling with the child in her lawful custody pursuant to an Order made by the Ontario Court.
The Respondent is now refusing to comply with Orders made by this Court for the child’s return to Ontario. When asked directly by the Court whether, as a parent, he believed it was in his child’s best interests to have contact with the Applicant, the Respondent refused to provide a response and instead indicated that he needed to consult with his lawyer in Georgia.
The child should be starting school in Ontario next week, with the friends he has made over the years he has attended school in this province. Instead, the Respondent has unilaterally enrolled the child in school in Georgia in direct contravention of this Court’s Orders. The Respondent has shown contempt for Orders made by this Court.
Order
Existing Order shall continue, including the fine of $1,000 per day which shall continue to accrue until the child is returned to the jurisdiction of the Court.
For oral reasons given, the Respondent shall pay to the Applicant costs of the ex parte motion fixed in the amount of $5,000 and payable forthwith.
[Emphasis added.]
[7] Mr. Craige now voluntarily approaches the Divisional Court to commence a court proceeding that seeks to invoke the court’s appellate jurisdiction under Ontario law set out in s.19 of the Courts of Justice Act, RSO 1990, c C.43.
[8] The matter came before me in writing for intake triage and scheduling.
[9] In the mandatory Divisional Court Intake Information Form delivered for Mr. Craige, his counsel, Michael H. Tweyman, advises:
Counsel requests an urgent case management conference call to address the issues below.
There are urgent preliminary issues that need to be addressed, especially as the matter relates to a child. The Order under appeal is for the return of a child to the jurisdiction.
The moving party wishes to bring a motion to extend time to seek leave to appeal with respect appeal one of the orders and seeks to move for a stay pending the leave to appeal motion being determined.
Counsel is aware of the Divisional Court's preference to avoid interim motions and to simply expedite the hearing of the leave to appeal motion. In this case, there is an added necessity of a motion to extend time, and counsel is not aware if that can be sought from the panel as well or if an oral motion is required.
[Emphasis in original.]
[10] In the Intake Information Form, counsel also advises that,
The endorsement of Justice Leef, dated August 20, 2024 is also attached. Leave to appeal is not required for this Order because it was only confirmed by the August 30, 2024 order, but it is relevant for the court to have this endorsement as well.
[11] So, apparently, Mr. Craige is not seeking leave to appeal the order made on August 20, 2024 in which Leef J. required him to return the child to Ms. Hall, as quoted above.
[12] I am not prepared to schedule an urgent case conference or any proceeding before this court at the behest of Mr. Craige while he actively breaches and refuses to comply with the orders of the Superior Court. In my view, he should not be heard to ask for the assistance of the law of Ontario when he denies and deliberately frustrates its applicability to him. In her August 30, 2024 endorsement, the judge was clear that Mr. Craige is in breach of the April 29, 2024 order and the August 20, 2024 order that he return the child. She found essentially that he acted with subterfuge to circumvent the court’s orders and that he did so without even the pretense of espousing the best interests of the child who has lived here for most of his life.
[13] Not every breach of a court order necessarily deprives a party of the right of audience before an appellate court. But the unadulterated chutzpah being demonstrated by Mr. Craige is beyond the pale. The court will not play procedural games with the life and wellbeing of a child in the balance. This matter is too urgent and too important to become mired in a panoply of procedural motions for extensions of time, to stay a cherry-picked order, then for fresh evidence, and leave to appeal.
[14] Comply first; then appeal.
[15] I am not making any order. I am simply unwilling to hear Mr. Craige’s administrative request to convene an urgent case conference or to schedule any steps in a proceeding in this court while he remains defiantly in breach of the orders made by the Superior Court judge. I leave it to Ms. Hall to determine whether or how she might wish or be advised to proceed.
FL Myers J.
Date: September 20, 2024