Endorsement
COURT FILE NO.: FS-47-12
DATE: 20120629
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Art Sinclair, Applicant
AND:
Nancy Hebert, Respondent
BEFORE: The Honourable Mr. Justice R.G.S. Del Frate
COUNSEL:
Applicant, self-represented
Rose Muscalino, for the Respondent
HEARD: June 14, 2012
ENDORSEMENT
[ 1 ] Miss Hebert brings this application seeking an order staying the Order of The Honourable Justice McLeod dated March 27, 2012, pending the hearing of the appeal.
[ 2 ] The Order permits Mr. Hebert supervised access to the child Emilie Marchand, born March 26, 2008, once per month for one hour.
[ 3 ] It appears that the child was born as a result of a brief relationship between Mr. Sinclair and Miss Hebert. Since the birth of the child, Mr. Sinclair has had no access to her. He now seeks to establish a relationship with his daughter. Miss Hebert resists this access on the basis that Mr. Sinclair is a person of disreputable conduct and secondly, the child would be confused if a new person would be introduced into her life. Even this limited type time access, would not be in the best interests of the child.
[ 4 ] The test to be applied in determining whether a stay is ordered must consider three factors:
The merits of the appeal;
whether the applicant would suffer irreparable harm if the motion for a stay were refused; and
the balance of convenience, in the sense of an assessment of which party would suffer greater harm from granting or refusing the remedy pending a decision on the merits of appeal. See Decaen v. Decaen , M40928 C54891.
[ 5 ] In this case, there is merit to the appeal since the decision was made strictly on affidavit evidence without the benefit of any of the parties being cross-examined. The allegations raised are serious enough that clarification would have been of benefit to the trial judge.
[ 6 ] Further, even though it is conceded that the natural parent should have access and be able to establish a relationship with his or her child, in this case, such access would be disruptive to the child’s welfare. The child has no idea who this person is since she has never been told about his existence. Accordingly, such a relationship must be established gradually and with the proper counselling.
[ 7 ] It is also submitted by Miss Hebert that the appeal will be heard by September and thus, three additional months will not harm Mr. Sinclair but could cause irreparable harm to the child if access were permitted without the proper counselling. Accordingly, on the balance of convenience, access should be stayed until the determination of the appeal.
[ 8 ] On the other hand, Mr. Sinclair submits that he has been trying since birth to establish a relationship but Miss Hebert denied him the opportunity. Delaying the access will merely continue to deprive him of the right to establish a relationship with his daughter.
[ 9 ] The allegations made by Miss Hebert are quite serious and if access is permitted without the proper preparation for such access, the welfare of the child and the establishment of the relationship between child and father could be seriously compromised. An unexpected visit in a supervised access center with a total stranger could confuse the child. Some thought ought to be given as to how to arrange this first meeting.
[ 10 ] The appeal is scheduled to be heard in September. Although it will delay the introduction of the child to the father, it is in the child’s best interests to wait a further three months. In the interim, the parties can give some consideration as to how to facilitate this introduction.
[ 11 ] In view of the relationship between Mr. Sinclair and Miss Hebert I have serious doubts that any meaningful discussions towards achieving this end will take place. Hopefully, by the time such access is to take place, these very important aspects will have been discussed.
[ 12 ] Should the appeal not be heard in September, then Miss Hebert is to bring an application seeking an extension of this Order.
[ 13 ] In summary, therefore, the Order is stayed until September 30, 2012. Should it be necessary to address the issue of costs, the parties can make an appointment through the trial co-ordinator’s office within the next 15 days.
Mr. Justice Robert G.S. Del Frate
Date: June 29, 2012