SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS – 34 - 13

DATE: 2103/03/28

RE: Mark Lewis Jones, Applicant

AND:

Mandy Lee Jones, Respondent

BEFORE: D.A. Broad, J.

COUNSEL: Anna Towlson for the Applicant

Raymond Wrubel for the Respondent

HEARD: March 27, 2013

ENDORSEMENT

Nature of the Motion

[1] The Respondent Mother moves for an Order extending the time for serving and filing an appeal of the Order of Justice J. Caspers of the Ontario Court of Justice dated January 23, 2013 made on a Settlement Conference (the “Order”). Paragraph 1 of the Order provided that the children of the marriage shall be returned to the jurisdiction of Kitchener-Waterloo from Lindsay Ontario where they reside with the Respondent as their primary residence by April 1, 2013, failing which the Respondent’s pleadings would be struck and the primary residence be with the Applicant Father.

[2] The Respondent also moves for a stay of paragraph 1 of the Order pending the hearing of the appeal.

Background

[3] The parties started living together in 2003, were married on October 16, 2004 and separated on October 4, 2010. They have two children of the marriage, Megan, born May 20, 2006, and Evan, born March 30, 2009. The Respondent took the children with her to Lindsay, Ontario, where her extended family resides, upon separation and they have resided there since. The older child attends grade one in Lindsay and the younger child is not in school.

[4] An order was made, on consent, respecting custody and access, among other matters, on October 7, 2011 (the “Original Order”). Both parties were represented by counsel (not their present counsel) at the time of the Original Order.

[5] Pursuant to their consent and the Original Order, the parties have joint custody of the children, with the primary residence with the Respondent. The Applicant was given access on every second weekend and for four weeks in the summer. Paragraph 12 of the Order provided as follows:

“12. The Respondent shall attempt to secure employment within the vicinity of the Jurisdiction of the Region of Waterloo or surrounding area upon completion of her current schooling. This order shall be reviewable within three months of the Respondent’s completion of her schooling.”

[6] The context of para. 12 of the Original Order was that the Respondent was enrolled in the Personal Support Worker program at Fleming College in Lindsay. She graduated from that program June 1, 2012.

[7] The Applicant was not satisfied that the Respondent was complying with para. 12 of the Original Order and brought a motion for contempt which was heard by Justice McSorley of the Ontario Court of Justice on September 28, 2012. Justice McSorley found against the Respondent and held her to be in contempt of para. 12 of the Original Order by not making adequate attempts to seek employment in the Region of Waterloo. She ordered, inter alia, that the Respondent pay $3,500.00 in costs at the rate of $300.00 per month, and to commence her motion to change by October 22, 2012. The Respondent was not represented by counsel on the contempt motion, whereas the Applicant was.

[8] The Respondent did proceed with a motion to change the Original Order and the Applicant responded by seeking an order that the children be returned to the Region of Waterloo.

[9] By Order of Justice Lynch, the Respondent was required to provide an Affidavit setting out her employment search efforts in the Waterloo Region since May 2012 and the specific outcome of those efforts. She did not provide this Affidavit, however, she has now listed the employers in the Region to which she applied in her affidavit in support of the current motion, although it does not detail the outcomes of the employment applications listed.

[10] Justice Lynch adjourned the matter to a Settlement Conference on January 23, 2013

[11] The Settlement Conference was presided over by Justice Caspers. After reciting in her endorsement that the Respondent had not paid the costs ordered by Justice McSorley, had not filed the Affidavit ordered by Justice Lynch and had not filed a Settlement Conference brief, Justice Caspers in reliance on Rules 1(8) and 14(23) made the Order which is the subject of this motion. She ordered that the costs order be discharged at the rate of $300.00 per month commencing February 1, 2013, $500.00 having been paid to date.

[12] The Applicant’s Settlement Conference Brief at para. 9, respecting any temporary or final order sought at the settlement conference, stated “pursuant to Rule 14(23) the Applicant further requests that the Respondent’s (sic) mother’s Motion to Change be struck.”

[13] In her Affidavit in support of this motion stated that she was “shocked” at the Order made on the Settlement Conference. She also deposed, with reasons, that she believed that it was not in the children’s best interests to be returned to the Region of Waterloo. Included in the reasons were the disruption to Megan’s school year and the lack of any familial support in the Waterloo Region, requiring her to seek emergency housing for herself and the children until her motion to change were dealt with. She would also be required to quit her job. She deposed that the move would create undue mental, emotional and financial hardship on the children and herself.

[14] The Respondent deposed that, being unrepresented and unfamiliar with the Rules of the Court, she did not fully understand her right to appeal the Order. In particular she was not aware of the timeline for serving a Notice of Appeal, being 7 days from the date of the Order.

[15] The Respondent retained her current counsel Mr. Wrubel prior to February 20, 2013 and almost immediately her counsel contacted counsel for the Applicant to advise of his retainer, to advise that the Order would be appealed and to request a consent to extend the time to appeal. Such consent was not forthcoming and this motion ensued. Mr. Wrubel advised that the costs payment in the sum of $300.00 due February 1, 2013 was paid on the day prior to the argument of this motion and the March payment will be made before the end of March.

[16] Ms. Towlson for the Applicant argues that the Respondent has failed to comply with every order made to date in the proceedings and remains in contempt. Specifically she has not complied with the Order of Justice Lynch regarding the provision of an Affidavit detailing her job search efforts in the Waterloo Region as well as the costs orders. Ms. Towlson argues that the Respondent is disentitled to the relief she seeks in these circumstances.

[17] Ms. Towlson further argues that Justice Caspers had the full power under sub-rule 17(8) to make the Order, as the Applicant had requested in his pleadings an order that the children’s primary residence be changed, and requested, in his Settlement Conference brief, that the Respondent’s pleadings be struck for failure to comply with court orders. She argues further that had Justice Caspers struck the Respondent’s pleadings, she would have had jurisdiction to immediately grant the relief sought by the Applicant by changing the primary residence of the children to that of the Applicant, but she stopped short of doing so, and made an order more favourable to the Respondent, by permitting her to maintain primary residence, pending the determination of the motions, by returning with the children to the Waterloo Region.

[18] Ms. Towlson also argues that the Respondent did not appeal the Order in a timely fashion and has not provided a reasonable excuse for her delay in that respect.

Analysis

(a) Extension of time to Appeal

[19] The principles to be considered by a Court exercising appellate jurisdiction in deciding whether to grant an extension of time to launch and appeal or perfect an appeal were recently reviewed by Justice Laskin of the Court of Appeal in Mortazavi v University of Toronto 2013 ONCA 66 (CA), citing the earlier case (in a family law context) of Issasi v. Rosenzweig 2011 ONCA 112 (CA), at para. 21 as follows:

21 The overriding principle the court must consider in deciding whether to grant a party an extension of time to perfect an appeal is whether the justice of the case requires it. In applying this principle, the court typically takes into account the following four factors:

1. Whether the appellant formed an intention to appeal within the relevant period;

2. The length of the delay and explanation for the delay;

3. Any prejudice to the respondent;

4. The merits of the appeal.

See Issasi v. Rosenzweig, 2011 ONCA 112 (Ont. C.A. [In Chambers]), at para. 4

[20] It is to be noted that Justice Laskin stated that the overriding principle is whether the justice of the case requires the extension, with the four factors typically taken into account in making that determination. In my view this suggests a holistic approach should be adopted, rather than a formulaic one requiring an appellant to satisfy each item on a checklist. The factors are to be weighed, in conjunction with one another, to determine whether the justice of the case requires an extension to be granted. The flexibility of the analysis is exemplified by Justice Weiler’s approach in Issasi v. Rosenzweig where she considered the first two factors together.

[21] In this case, there is no evidence that the Respondent formed a specific intent to appeal within the 7 day appeal period. However this should be measured against her statement in her Affidavit that she did not fully understand her right to appeal. In consideration of the first two factors together, once she retained counsel, within 28 days of the Order, immediate notice was given to the Applicant’s counsel, of her intention to appeal. The fact that she was unrepresented and was unaware of the right to appeal and, by extension, the length of the timeline to appeal, provide an adequate explanation for the delay. Justice P.D. Lauwers in the case of Riad v Aziz 2011 ONSC 1060 at para. 3, citing the case of Monteith v. Monteith 2010 ONCA 78, [2010] O.J. No. 346 (CA) [in chambers], stated that the appellant’s lack of conversancy with the Rules is of some relevance to the court in explaining delay and in exercising its discretion to extend.

[22] On the question of prejudice, Ms. Towlson argues that the Applicant would suffer prejudice in two respects, first that so long as the children remain in Lindsay he is unable to exercise mid-week access, and second, the longer the children remain in Lindsay, the more difficult it may become to advance his request that they be returned to the Waterloo Region. However, these factors do not arise from the failure of the Respondent to appeal within the 7 day timeline, but would be present in any event had she filed her appeal within the required time. The Applicant would not, in my view, be prejudiced by the granting of an extension to appeal, as the circumstances did not change in the period from when the Respondent should have filed her Notice of Appeal and when she launched this motion in a manner which would prejudice the Applicant. The Settlement Conference will resume, as ordered on April 10, 2013, at which time a date will likely be set for the hearing for the motion to change.

[23] With respect to the merits of the appeal, the unfiled Notice of Appeal sets forth, as its primary ground, that Justice Caspers did not have jurisdiction to make the order at Paragraph 1 of the Order pursuant to Rules 17(8), 1(8) or 14(23) of the Family Law Rules. Among other things, the Notice of Appeal asserts that the Applicant did not request that the children be returned to the Region of Waterloo in his Settlement Conference Brief. The only relief sought by way of an order was that the Respondent’s Motion to Change be struck.

[24] It is not this court’s function, on this motion, to determine whether the Respondent’s appeal will ultimately prevail if allowed to proceed, but rather to consider whether the Respondent’s case on appeal “has so little merit that this court could reasonably deny the important right of appeal.” as stated by Justice Laskin at para. 24 of Mortazavi.

[25] In the case of Berry v. Oilerenshaw (2003) 2003 2405 (ON SC), 47 R.F.L. (5th) 254 (Ont. SCJ) Justice Olah, at para. 7 stated that the law is unclear whether clause 17(8)(b) of the rules, refers to mere procedural orders or includes substantive orders. It appears that the issue remains unclear on the jurisprudence subsequent to that case. In Chand v. Chand 2010 ONSC 1599 (SCJ) Justice McGee, after discussing Berry and in considering the decision of Justice Maresca in the later case of Merko v. Merko 2008 ONCJ 530, [2008] O.J. No. 4273 (OCJ), commented at para. 26 that “her observation that Rule 17(8) (b) has had little treatment to date in the case law is as true today as it was at the time of her decision.” Justice McGee also noted the lack of any statutory definition of “notice” in Rule 17(8)(b) (as it then was).

[26] In the case of Kelly v. Mitts 2008 4783 (ON SC), 50 R.F.L. (6th) 407 (SCJ), a decision of Justice Gordon of this court, an appeal from a final order made on a settlement conference, after pleadings were struck, was dismissed. Justice Gordon held that, once the pleadings were struck, the conference came to an end and the hearing was converted to an uncontested trial. The options available to the trial judge were to (a) adjourn to a date for an uncontested trial; directing an uncontested trial by motion without notice, to be dealt with by a chambers judge; or (c) proceeding that day.

[27] It is noted that Kelly did not deal with the power of a judge to make dispositive opposed orders on a settlement conference, as Justice Gordon held that the conference had come to an end prior to the making of the order. The trial judge in that case, also Justice Caspers, proceeded under Rule 17(8)(c) (not Rule 17(8)(b)) to “make an unopposed order.” The Kelly case therefore is not determinative of the question of whether the proposed appeal in this case lacks merit.

[28] The question of whether there was “notice” of a request for the return of the children to the Waterloo Region to support a dispositive order respecting the children’s residence on the settlement conference, and whether such an order should have been made within a proper interpretation of Rule 17(8)(b.1), viewed in the context of the primary objective of the Rules as stated in Rule 2(2), namely to deal with cases justly, are issues which are raised squarely in the Notice of Appeal. Given the lack of clarity in the law respecting the powers of a judge to make dispositive opposed orders on a conference, I am not in a position to find that the appeal “has so little merit that this court could reasonably deny the important right of appeal,” using the words of Justice Laskin in Mortazavi.

[29] There are two other observations I would make in reference to the overall question of whether the justice of the case requires an extension to be granted.

[30] First, the present controversy between the parties stems largely from the making of the Original Order requiring the Respondent to “attempt to secure employment” within the vicinity of the Region of Waterloo upon completion of her schooling, and the subsequent finding that the Respondent was in contempt of that provision. The question arises as to whether it was within the power of the Court to make an order requiring the Respondent to attempt to find employment in the Region of Waterloo or its environs. The jurisdiction of the court is to determine the questions or custody, primary residence and access in the best interests of the children. Choices that a party may make regarding his or her place of residence may have an impact on the disposition that the court may make on those questions, but quere whether the court has jurisdiction to order a party to attempt to find employment in a particular locality. If the court lacked jurisdiction to make the Original Order, questions arise regarding the propriety of the contempt order, as well as the order requiring the Respondent to detail her attempts to find employment in the Waterloo Region.

[31] It is recognized that the contempt order was made and was not appealed, and it is not necessary, nor appropriate, for me to make a determination of the issue, however, the questions around the jurisdiction of the court to make the orders in question go to the overall question of whether the justice of the case requires the extension sought by the Respondent to be granted.

[32] Secondly, Justice Caspers, in her Endorsement, did not appear have given any consideration to question of the best interests of the children. The only stated consideration was the non-compliance by the Respondent with court orders and rules. The appropriateness of making an order affecting the children in such a profound way, in the context of a Settlement Conference, based not on a consideration of their best interests, but on procedural compliance, is a question that is raised by the proposed appeal and suggests that the justice of the case does require an extension of the time to appeal.

(b) Stay of Order Pending Appeal

[33] Justice Wright of the Ontario Court, General Division dealt with the considerations to be looked at on a motion to stay a custody order pending appeal in the case of Smith v. Galarneau [1998] W.D.F.L. 100 at para. 9 as follows:

As a rough guide for handling motions to stay a custody order pending appeal I suggest that one consider the following:

1. Did the order give custody to the primary caregiver or did it change custody to the other parent?

-If to the primary caregiver then, other things being equal, don't issue a stay

-If to the other parent then consider #2

2. Was this a case where the primary caregiver was found to be unfit or are both adequate parents but the other parent has been found to be the better parent?

-If the primary caregiver was found to be unfit then, other things being equal, don't issue a stay

-If both are adequate parents then consider #3

3. Is there a significant chance that the appeal will be successful?

-If there is not a significant chance the appeal will be successful, then, other things being equal, don't issue a stay

-If there is a significant chance that the appeal will be successful, then consider #4

4. If the appeal is successful, will it hurt the child to be moved in accordance with the trial decision pending appeal and then moved back again after appeal?

-If the child would not be hurt by these moves then, other things being equal, don't issue a stay

-If the child would be hurt by these moves then issue the stay.

[34] Although this case does not involve custody, in that the Original Order provided for joint custody, it would appear that Justice Wright’s reference to “custody” is in the broad sense of the word, in that the Smith case dealt with an order that changed the primary care and control of the child from his mother to his father. In any event, I find that the approach suggested by Justice Wright has much to commend it on the present motion.

[35] There is no suggestion that the Respondent, as the primary caregiver, is to be considered in any way unfit. Based upon my comments set forth above, there is a significant chance that the appeal will be successful. In my view, the children would be hurt by being moved to the Region of Waterloo in accordance with the Order, and then moved back again after the appeal if it is successful.

[36] On a matter of this nature, the paramount concern of the Court is the best interests of the children. The failure of the Respondent to comply in a timely way with court orders, although noteworthy and significant, is of secondary importance. Mr. Wrubel, for the Respondent argues that the Respondent is now in compliance with the various orders, and has therefore cured her earlier defaults. It is not necessary for me to make a determination with respect to that, as I am satisfied that the best interests of the children support the granting of a stay pending the appeal. This is particularly so since the timeline for the ultimate determination of the issues on the motion to change will not be affected by the appeal.

Disposition

[37] For the reasons set forth above, it is ordered as follows:

(a) The time for serving and filing the Notice of Appeal of the Order of Justice Caspers of the Ontario Court of Justice dated January 23, 2013 be extended until April 2, 2013;

(b) Paragraph 1 of the said Order shall be stayed pending the hearing of the appeal;

(c) The continuation of the stay is conditional upon the Respondent paying to the Applicant the March instalment of the costs order by March 31, 2013 and paying the subsequent instalments by the last day of each month commencing April 2013 and continuing by the last day of each month until the costs are fully paid; and

(d) In the event that there is default in payment of any instalment of the costs, and such default is not cured within 10 days, the Applicant may move, on four days’ notice, for an Order lifting the stay.

[38] The parties may make brief submissions with respect to costs of the motion, the Respondent within 20 days hereof and the Applicant within 30 days hereof.

D.A. Broad, J.

Date: March 28, 2013