COURT FILE AND PARTIES

COURT FILE NO.: FS 656-13

DATE: 2013-08-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mark Lewis Jones, Applicant

AND:

Mandy Lee Jones, Respondent

BEFORE: The Honourable Mr. Justice D. J. Taliano

COUNSEL:
Anna Towlson, Counsel for the Applicant

Raymond J. Wrubel, Counsel for the Respondent

HEARD: August 8, 2013

ENDORSEMENT

[1] The respondent mother moves for a stay pending her appeal of an order of Hardman, OCJ. that requires her to relocate the primary residence of her two children to Waterloo Region from Lindsay, where she currently resides with the children. Her appeal is scheduled to be heard in either October or November of this year. The issue which creates some urgency is that both children are scheduled to begin school in September in Lindsay.

BACKGROUND

[2] The facts leading up to this juncture are reviewed in two written judgments and I do not propose to repeat them except to provide context for this ruling.

[3] The mother and father commenced living together as a couple in 2003, were married on October 16, 2004 and separated on October 4, 2010. They have two children, Megan born on May 20, 2006 and Evan born on March 30, 2009. The mother separated from the father by leaving the matrimonial home and moving to Lindsay with the children on October 4, 2010. The children have lived with the mother since then. In Lindsay she undertook a course of study at Fleming College to prepare herself for employment. Following separation, the father commenced proceedings seeking the return of the children and approximately one year later almost to the day, on October 7, 2011, the parties consented to an order made by Caspers, OCJ. awarding joint custody with primary residence to the mother. However, the consent order contained a provision that required the mother to “attempt to secure employment” within the vicinity of the Region of Waterloo upon completion of her studies in Lindsay. The order was stated to be reviewable within three months of the completion of the mother’s studies.

[4] The mother graduated in June 2012 and accepted employment in Lindsay as a personal support worker. The mother stated in an affidavit that she had tried to find employment in the Region of Waterloo, but was unsuccessful. Nevertheless, she was found to be in contempt of the Caspers order by McSorley, OCJ. on September 28, 2012 and was ordered to pay costs of $3,500 in monthly instalments of $300. In addition, the order required the mother to commence her motion to change (the Caspers order) and serve it on or before October 22, 2012. The matter was adjourned to November 14, 2012.

[5] The mother did move to change the Caspers order and, on December 21, 2012, the mother was ordered by Lynch, OCJ. to provide an affidavit setting out “her employment search efforts in this area since May 2012 and the specific outcome of those efforts”. The affidavit was ordered to be provided by January 14, 2013. The matter was adjourned to January 14, 2013 for a Settlement Conference. The mother acknowledges that she failed to file the required affidavit and at the Settlement Conference, Caspers, OCJ. ordered that the children be returned to the Region of Waterloo by April 1, 2013. This interim order was made notwithstanding that the father had not asked for the return of the children in his Settlement Conference Brief.

[6] The mother appealed the Caspers order and a stay pending appeal was granted by Broad J. of this court on March 28, 2013. However, the Caspers order was rendered moot when Hardman OCJ. subsequently made a permanent order on June 12, 2013 which included the following terms:

1. Term 12 regarding the obligation to seek employment is terminated.

2. The primary residence of the children is to be returned to the Region of Waterloo or as otherwise agreed by the parties in writing on or before September 1, 2013.

3. Should the mother relocate to the Region, then she shall maintain the primary residence of the children subject to the access by the father. Should she fail to relocate by September 1, 2013, then the children shall reside in the father’s primary care subject to access by the mother as agreed by the parties.

4. The issue of the contempt is complete with the finding that the mother was in contempt by Justice McSorley on September 28, 2012.

[7] The mother states in her affidavit in support of her motion for a stay that a return of the children to Waterloo Region is not in the best interests of the children for the following reasons. The oldest child has been attending school in Lindsay since the move and will enter grade two in September. She has made friendships that would be lost by a move. The youngest child will attend junior kindergarten in the fall. The mother states that she would need to give up her current job which pays well and provides much needed benefits and find new employment, (which she states may be difficult to do) and new housing in Waterloo Region. She also states that housing in Waterloo Region would be more expensive than in Lindsay. In Lindsay, the mother has a significant extended family and a circle of friends that provide her with a badly needed support system. The mother and children have no family in Waterloo Region other than the father. The father is insisting that unless the mother moves to Cambridge, which she is not prepared to do, he would not be any more involved with the children than he currently is with them living in Lindsay.

[8] The father’s position is set out in his affidavit material and contradicts in some critical areas the mother’s affidavit evidence. He states that he and the mother agreed on joint custody when they separated and they both agreed that it was in the children’s best interests that the parents reside within the Region of Waterloo and in relatively close proximity to each other. Notwithstanding their agreement, the mother took the children and moved with them to Lindsay on October 4, 2010 without the father’s consent and while the father was at work and with no notice to him other than a note saying that the children were with her and were safe. He immediately commenced proceedings, which were resolved by the consent order made by Caspers, OCJ. on October 7, 2011. Both parents were represented by counsel at the time of this order and in the discussions leading to the consent order, the father states that he was assured by the mother that if she was permitted to finish her schooling in Lindsay, she would return to Waterloo Region with the children when she completed her studies.

[9] The husband further alleges that when she completed her studies, she indicated to the father that she had no intention of returning to Waterloo Region and she did in fact accept employment in Lindsay. When she so informed Justice McSorley, the mother was found in contempt and was ordered to bring a motion to change the order of Caspers OCJ. Although the mother did bring her motion to change, she neglected to pay the costs order of $3,500 and did not immediately comply with orders to file particulars of her efforts to find employment in Waterloo Region; nor did she serve and file a Settlement Conference Brief as she was ordered to do. Justice Hardman made the final order in this matter on June 12, 2013. The father has alleged that the mother has ignored court orders and legal obligations and that her non-compliance has cost him thousands of dollars in legal fees and the emotional expense of not living near and seeing his children on a liberal and generous basis.

[10] The father further alleges in his affidavit that the mother’s employer is a company called Paramed, whose head office is in Kitchener-Waterloo. He states that the company has employment openings for personal support workers in this Region and is actively seeking to fill them, filing a newspaper ad to support his contention. Accordingly, he asserts that the mother could be employed in Waterloo Region in accordance with her agreement if she chose to be. In addition, the father expressed concerns over the lack of proper supervision of the children in the mother’s care.

APPLICABLE LAW

[11] On a motion to stay such an order, according to the decision of the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada v. The Attorney General of Canada, et al, 1994 117 (SCC), [1994] 1 S.C.R. 311, the onus is on the mother to show (1) a serious question to be tried with an extremely limited view of the case on the merits; (2) irreparable harm if the relief is not granted; and (3) that the balance of convenience favours the appellant. However, the Ontario Court of Appeal stated the test differently in Barnes v. Parks, 2001 24146 (ON CA), [2001] O.J. No. 643 and subsequently in Lefebvre v. Lefebvre, 2002 17966 (ON CA), [2002] O.J. No 4885, both of which are cases that involved the Family Law Reform Act, R.S.O. 1990, c. C.12, s. 74. Speaking for the court in Lefebvre, Laskin J.A. held that the three part test for a stay requires the applicant to show that (1) the appeal raises a serious question that the trial judgment is wrong; (2) that the applicant will suffer irreparable harm if a stay is not granted; and (3) the balance of convenience favours a stay. The overriding consideration is the best interests of the child.

[12] I am of the view that the two appellate decisions referred to above are binding on me and set out the principles which are applicable to this case since both appellate decisions involved rulings under the Children’s Law Reform Act. By contrast, the MacDonald decision was one of general application and must yield to the more statute specific rulings.

DISCUSSION

[13] The mother’s notice of appeal cites numerous and arguable grounds for appeal given the case’s unique circumstances. First and foremost, is the apparent contradiction of a finding that the mother was in contempt by McSorley OCJ. on September 28, 2012 and the imposition of punitive cost sanctions while at the same time ordering an adjournment of the “matter” to a later date. In view of the finding that had been made that the mother was in contempt for non-compliance with the order and had been penalized in costs, it is not clear what was being adjourned and why. I agree with Hardman OCJ.’s observation at paragraph 65 of her judgment where she states: “The mother was already found in contempt and in my view that should have been the end of it.” But it wasn’t.

[14] On November 14, 2012, Lynch OCJ. ordered the mother to serve and file an affidavit dealing with her efforts to search for employment in Waterloo Region. The mother was forced to then present her case in the context of the ongoing contempt issue. She had indicated that as the primary residence parent, she did not wish to return to Waterloo Region. At that point the issue was not whether the mother’s alleged prior agreement to return the children should be enforced but whether the children’s best interests would be served by awarding sole custody/primary care to the mother (as the Office of the Children’s Lawyer had recommended) who was now living in Lindsay or to the mother if she was living in the Waterloo Region (in which case the mother would be jobless and without her family support system) or to the father who was living in Cambridge if the mother failed to move to Waterloo Region. The ruling required a consideration of all of the factors referred to in sections 24(2), (3) and (4) of the Children’s Law Reform Act (“CLRA”) and a balancing of those factors vis-à-vis the two competing claims.

[15] However, the issue was not so framed by the court. The court appears to have assumed the father’s competence as a primary care/custodial parent (see para. 46 of the reasons), notwithstanding the OCL report that recommended sole custody to the mother and focused on the mother’s non-compliant behaviour and her relocation of the children. Despite the prohibition against considering past conduct under s. 24(3) of the Act, the order of the court forces the mother to move to Waterloo Region or lose primary care/custody of the two children to the father. Bearing in mind that the children were “thriving in the mother’s care” and that this was a father who had preferred to be an access parent as opposed to a custodial parent, it is at least arguable that a ruling that compelled the primary care parent to move to the access parent’s community in order to preserve her primary care rights without consideration of all of the custodial criteria mandated by the CLRA, is of questionable validity.

[16] Similarly, a ruling that usurps the role of a primary care parent in the choice of a community for her family in order to accommodate the father’s access simply because the primary care parent had agreed to search for employment in his community three years earlier in different circumstances, may be difficult to defend. The mother’s agreement and the court order that it spawned, was only to seek employment in Waterloo Region. It did not go so far as to require the mother to accept employment in that community nor did it say anything about living in that community. To convert the mother’s three year old obligation to simply seek employment into an obligation to obtain employment and to live in an unspecified community in Waterloo Region is an exercise that is not warranted by the wording of the order, may even exceed the powers of the court laid out in s. 30 of the CLRA and might not even benefit the father since the mother is unprepared to live in Cambridge where he wants her to live. The court’s enlargement of the mother’s obligation is even more concerning in that it may result in placing primary care with a father whose parenting skills, parenting experience and commitment to the children have not been evaluated by the court.

[17] A further concern with the decision is the dismissal of the mother’s material dealing with her efforts to find employment in Waterloo Region. She had presented a list of 12 employers to whom she had applied for employment in Waterloo Region. It should be noted that the mother was a working, single parent raising two children in Lindsay who was, simultaneously, responding to legal proceedings in Kitchener, at times without the benefit of counsel. The rejection of her evidence as “not dated, not particularized and woefully late” without permitting the mother to particularize or explain her evidence may be viewed as an error in law. This is particularly true if I am correct (and Hardman, OCJ. was correct when she concluded) that the contempt issue had already been decided and that this employment-search information was no longer relevant. In any event, if it was still relevant, the mother’s evidence had not been challenged by questioning or persuasive contrary evidence other than one single newspaper advertisement. Arguably, her evidence should not have been summarily dismissed as being too little too late without more detailed analysis or without affording an opportunity to the mother to explain her evidence given the profound impact the ruling would have on this family.

[18] I do not propose to say more on the merits of the appeal. The merits must be determined by the appellate process.

[19] With respect to the second requirement, that of irreparable harm, it could come to pass that if a stay is not granted and the mother is forced to either abandon her job (that she may not be able to replace with comparable or better employment in Waterloo Region) or the low cost of housing that she currently enjoys, she may suffer irreparable harm if her appeal is successful. Secondly, to uproot the children from a stable home and school environment for a period of a few short months, when the possibility exists that they will be returned to Lindsay, may cause a disruption to their young lives that is harmful and unnecessary. There was no evidence before the court that addressed the implications of a double move and it is not safe to conclude that merely because the children were young that they would not be impacted adversely and irreversibly by such an order. Accordingly, I am satisfied that the mother has met the second prong of the test.

[20] Finally, with respect to the balance of convenience requirement, it clearly favours the mother. The mother will undoubtedly suffer greater inconvenience if the order is not granted and she is successful on her appeal than the father will suffer if the stay is granted and the appeal is unsuccessful. The father has been living in a separate community from his children for just under three years. Another few months should not be a great cross to bear, particularly following a period of extended access during the summer months.

DISPOSITION

[21] For these brief reasons, a stay of paragraphs 2 to 4 of the order of Hardman OCJ., dated June 12, 2013, is granted pending hearing of the mother’s appeal.

[22] The issue of costs of this motion was not addressed by either counsel. Without the benefit of submissions, my preliminary view is that costs of this motion should be dealt with by the judge who hears the appeal. However, I will address the issue if so requested by either party following the disposition of the appeal.

D. J. Taliano, J.

Date: August 21, 2013