ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-12-11556
DATE: 20121206

BETWEEN:

Karen Rebecca Ramsey Applicant (Moving Party) – and – Arthur Weisenbacher Respondent (Responding Party)

Warren S. Fullerton, for the Applicant (Moving Party)
Robert J. M. Ballance, for the Respondent (Responding Party)

HEARD: December 3 , 2012

reasons on motion FOR LEAVE TO APPEAL

Bondy J.:

A. OVERVIEW

Background

[ 1 ] The applicant Karen Rebecca Ramsey (“Ms. Ramsey”), and the respondent Arthur Weisenbacher (“Mr. Weisenbacher”), began to cohabit in November 2008 and were married December 14, 2008. The parties separated approximately three years later on January 4, 2012.

[ 2 ] They have one child, Tessa Avery Weisenbacher born June 5, 2009 (“Tessa”).

[ 3 ] The day after separation, the applicant mother moved to Kitchener with Tessa. To be clear, there was no order for custody or residency outstanding at that time.

[ 4 ] On February 10, 2012, Nolan J. issued an order directing that Tessa reside with the applicant mother in Kitchener. The respondent father was granted access for periods of up to five hours in Kitchener. He was required to be accompanied by his mother or his sister or another person agreed upon by the parties and arranged through counsel. That order was the result of allegations the respondent had a serious drug and alcohol addiction, allegations that were later found to be false or greatly exaggerated. The order anticipated further evidence by way of an assessment as to Tessa’s needs and the ability and willingness of the parties to meet those needs and accordingly was made “without prejudice”.

[ 5 ] On October 30, 2012 Nolan J. released an order that includes without limitation, the following provisions;

a) Tessa’s residence shall be returned to Essex County by December 15, 2012;

b) Tessa’s primary residence shall be with the applicant mother, subject to liberal and general access as agreed or fixed by Nolan J.;

c) the respondent father shall pay to the applicant mother the sum of $10,000 to assist in the cost of re-location to Windsor, the sum to be accounted for in any financial settlement arrived at (excluding child support);

d) Tessa is to be re-enrolled in Montessori in Windsor, to commence no later than the first day of school in January, 2013;

e) Mark Donlon is to conduct an assessment and to provide a report to the court as to Tessa’s needs and the ability and willingness of the parties to meet those needs by March 31, 2013, (this deadline was later extended on consent to April 30, 2013).

[ 6 ] Two motions resulted from that order. They were both before me.

[ 7 ] On November 8, 2012, the applicant mother filed the first motion. That motion seeks leave to appeal the October 30 th order. The substantive relief claimed includes:

1. An order granting the applicant leave to appeal the Order of the Honourable Madam Justice Nolan dated October 30, 2012 to the Superior Court of Justice, Divisional Court, in accordance with rule 38 of the Family Law Rules and rule 62.02 of the Rules of Civil Procedure ;

2. An order staying the Order of the Madam Justice Nolan dated October 30, 2012 pending the disposition of this appeal to the Superior Court of Justice, Divisional Court, in accordance with rule 38(35) of the Family Law Rules and rule 63 of the Rules of Civil Procedure .

[ 8 ] The substantive grounds of the appeal are as follows:

a) The learned motion judge erred in law in failing to recognize and apply the appropriate test for mobility as set out by the Supreme Court of Canada in Gordon v. Goertz , [1996] S.C.R. 27 as applied to subsequent mobility cases on an interim basis, at trial and at the appellate level.

b) The learned motion judge erred in law in failing to provide meaningful reasons from which an appellant could appeal.

c) The learned motion judge erred in law in failing to appropriately weigh the maximum contact principle against all other principles to determine the best interests of the child.

d) The learned motion judge erred in law, or in the alternative in mixed fact and law in failing to recognize and compare the status quo prior to separation of the parties with the new status quo, which had developed by the child, Tessa Avery Weisenbacher, living in Kitchener undisturbed for a period exceeding ten months after separation.

e) The learned motion judge erred in law in failing to consider, compare and give reasons for declining other residential arrangements for the child should the applicant not relocate herself to Essex County.

f) The learned motion judge erred in law by exceeding her jurisdiction to implicitly order the applicant to relocate her own residence to Essex County.

g) The learned motion judge erred in law in failing to give appropriate weight to the consequences of her relocation of the child to Windsor from Kitchener, particularly the loss of employment for the applicant consequent to the relocation.

h) The learned motion judge erred in law in failing to consider and weigh all of the evidence on the motion.

i) The learned motion judge erred in mixed fact and law in failing to appropriately apply the best interests of the child test.

[ 9 ] On November 16, 2012, the respondent father filed the second motion. That motion seeks to strike the affidavit of the applicant sworn November 5, 2012 in support of the applicant’s motion. Counsel for the applicant agreed to withdraw the affidavit and so it was unnecessary to decide this motion.

B. ANALYSIS

1) The Issue

[ 10 ] The issue is whether or not leave to appeal Nolan J.’s decision should be granted and if so, whether or not a stay of that order is appropriate in these circumstances.

2) The Test

[ 11 ] The appropriate test appears at rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The relevant portion reads as follows:

Grounds on Which Leave May Be Granted

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[ 12 ] The rule provides for two alternate grounds.

[ 13 ] The first ground is a two step test. There must be both a conflicting decision by another judge or court on the matter involved and in the opinion of the judge hearing the motion it must be desirable that leave to appeal be granted.

[ 14 ] The meaning of the words “conflicting decision” does not mean a different result because of different circumstances but rather the difference in the principles chosen as a guide to the exercise of such discretion: see Ventresca v. Ventresca , [2003] O.J. No. 5509 , at para. 18 .

[ 15 ] Catzman J. offers guidance regarding the meaning of the words “desirable that leave to appeal be granted”. At para. 13 of Rankin v. MacLeod, Young, Weir Ltd. , 1986 2749 (ON SC) , [1986] O.J. No. 2380 (H.C.) he concludes that the issues must involve a question of general or public importance that require appellate review. He confirms the issues must extend beyond the interests of the parties before the court.

[ 16 ] The second ground also has two steps. It requires both “good reason to doubt the correctness of the order” and the appeal must involve “matters of such importance that… leave to appeal should be granted”.

[ 17 ] The phrase “good reason to doubt the correctness of the order” does not require a conclusion that the decision in question was wrong or even probably wrong, or that I would have decided it differently had I been presiding as the motions court judge. The test is whether the decision is open to serious debate: see Judson v. Mitchele , 2011 ONSC 6004 , 108 O.R. (3d) 129 , at para. 15 ; and Ash v. Lloyd’s Corp . (1992), 1992 7652 (ON SC) , 8 O.R. (3d) 282 , [1992] O.J. No. 894 (Gen. Div.).

[ 18 ] “Matters of sufficient importance” are ones that extend beyond the interests of the litigants and relate to matters of public importance and matters relevant to the development of the law and the administration of justice: see Judson , at para. 16 , and Rankin .

3) Summary of the Law

[ 19 ] I begin with the observation this is an interim order. The discouragement of overturning interim interim orders was canvassed in Ventresca . While the considerations in the two types of order are not identical, they are similar. At para. 25 of the decision Anderson J. states:

I find it is not desirable that leave to appeal be granted in this case. This is an interim-interim order. By its nature, an interim-interim order is temporary and is subject to change. An interim-interim order is designed to bring some stability and tranquility to the relationship, pending cross examinations, discoveries, and productions. It cannot do so if the parties are given an avenue of appeal that is too broad. Appeals of interim-interim orders should be discouraged.

[ 20 ] I summarize the law applicable to interim mobility motions as follows.

[ 21 ] The best interests of the child must be determined from a child centered perspective. The appropriate framework for that analysis is that set out by the Supreme Court in Gordon v. Goertz , at para. 49 of the judgment. Of interest, paragraph 1 of the judgement confirms that mobility motions are almost exclusively between a custodial parent and an access parent. I reiterate there was no custody order in place in this case.

[ 22 ] Interim and interim interim motions by their very nature are based upon incomplete and often conflicting evidence. Accordingly, as observed by Quigley J. and McSorley J. there is a general reluctance of the court to effect fundamental changes to a child’s lifestyle on interim motions and, accordingly, a more restrictive approach is taken.

[ 23 ] At para. 16 of Datars v. Graham , 2007 34430 (ON SC) , [ 2007] 41 R.F.L. (6th) 51 (S.C.) , O.J. No. 3179, Quigley J. quotes McSorley J.’s decision in Kennedy v. Hull , 2005 ONCJ 275 , O.J. No. 4719 where she states:

[I]t is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions.

[ 24 ] That difficulty resulted in the list of considerations articulated by Marshman J. in Plumley v. Plumley , 1999 13990 (ON SC) , [1999] O.J. No. 3234 (S.C.). It follows in interim mobility motions, both the test in Gordon v. Goertz must be satisfied, and the type of urgent situation anticipated in Plumley must exist.

[ 25 ] The test articulated by Marshman J. appears at para. 7 of Plumley , where she states the following:

It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

i. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

ii. There can be compelling circumstances, which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

iii. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

4) Preliminary Observations

Overview

[ 26 ] I begin with the observation that it is obvious Nolan J. treated the reasons in her endorsement as part of a continuum that had begun in February of 2012. In writing a decision, a judge is entitled to presume that each of the endorsements and orders that have preceded were read and understood by the parties. In other words, a judge need not reiterate reasons already given. That is particularly true in this case, given that Nolan J. was the only judge involved in this matter’s brief but highly combative history.

[ 27 ] Consistent with that observation, para. 6 of Nolan J.’s order of October 30 states that:

[P]aragraph 2 and 3 of my order of February 24, 2012 remain in effect; Mark Donlon is designated to conduct an assessment and provide a report to the court with respect to Tessa’s needs and the willingness and ability of both the applicant and respondent to meet those needs, provided that any assessment and report can be completed no later than March 31, 2013.

[ 28 ] That paragraph is pivotal in understanding Nolan J.’s reasons. On February 24, she found that the evidence was inconclusive as to Tessa’s needs and the willingness and ability of both the applicant and respondent to meet those needs. In her October 5 ruling Nolan J. states:

Although in February, 2012 I had ordered that the parenting assessment be conducted, unfortunately no such assessment by a professional whose opinion would have been of some value was provided to me.

[ 29 ] As of October 30, nothing had changed. That was notwithstanding approximately 43 highly inflammatory affidavits, which she described as “mostly unhelpful” in her October 5, 2012 ruling. In other words, the very clear foundation of the October 30 ruling is the fact that custody remains very much a live issue. Fundamental to that determination is the evidence of an assessor. There is no evidence that either party had taken any steps to comply with the February 2012 order as of the date of the motion. The authority to decide where a child will live is a function of custody. It follows that if the evidence is insufficient to decide custody, it is equally insufficient to decide mobility. That is the essence of Nolan J.’s decision. It follows that the underlying objective of the October 30 endorsement is to ensure that the issue of custody is not “backed into” because of a premature decision on mobility.

[ 30 ] I conclude Nolan J.’s order must be read in the context of that framework.

[ 31 ] There were three issues that affected several of the enumerated grounds of appeal. They were the “status quo”, the “delay” between the date the applicant moved to Kitchener and the matter was ultimately heard, and finally “sufficiency of reasons”. I find it appropriate to consider each of those preliminary issues prior to examination of the grounds of appeal.

(Decision text continues exactly as above through paragraph [107], concluding with:)

Original signed “ Bondy J. ”

Christopher M. Bondy
Justice

Released: December 6, 2012

COURT FILE NO.: FS-12-11556

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Karen Rebecca Ramsey Applicant (Moving Party) – and – Arthur Weisenbacher Respondent (Responding Party) REASONS on motion FOR LEAVE TO APPEAL Bondy J.

Released: December 6, 2012