THE MOTIONS

[1] The Applicant Mother seeks an Order granting leave to appeal the Order of McCarthy J. dated September 19, 2013. In addition, she seeks a stay of said Order pending hearing of the appeal.

[2] The Respondent Father brings a motion to dismiss the Applicant Mother’s motion.

[3] For written reasons to follow, I granted leave to the Applicant Mother to appeal the order of McCarthy J. Further, I stayed his order pending the hearing of the appeal. As for the Respondent Father’s motion, it was dismissed. The parties agreed that costs would be dealt with by way of written submissions.

REASONS

[4] Here are my written reasons.

POSITION OF THE PARTIES

Position of the Applicant Mother

[5] The Applicant Mother submits that the motion judge’s Order created a new situation which did not exist prior to the parties’ separation. He changed the status quo on an interim motion prior to trial in a custody and access matter. He should not have done so where his Order created a change to the interim status quo and where there was no evaluation of any compelling reasons for this change.

[6] Further, it is submitted that while the motion judge correctly referred to Plumley v. Plumley [1999] 13990 (ONSC) for the test on interim mobility motions, the motion judge failed to adequately explore the Applicant Mother’s financial situation living in Barrie as opposed to Haliburton County. It was submitted that the motion judge did not consider properly the problems the Applicant Mother would have attempting to move herself and three young children from Barrie to Haliburton County without housing and without income or job opportunities available to support herself or the children.

[7] Lastly, it is submitted that in making his shared custody order, the motion judge failed to give consideration or weight to the allegations of violence and abuse which the Applicant Mother and children have suffered at the hands of the Respondent Father. He neither considered the Respondent Father’s ability to care for the three children in this matter nor the proposed plan for the children’s care. It is submitted that there is good reason to doubt the correctness of the motion judge’s Order.

[8] As for the stay pending appeal, such an Order satisfies the test in Jones v. Jones [2013] O.J. No. 3861 (ONSC) at paras. 11 and 12:

(a) the appeal raises a serious question that the trial judgment is wrong;

(b) the Applicant will suffer irreparable harm if the stay is not granted; and,

Position of the Respondent Father

[9] It is submitted on behalf of the Respondent Father that leave to appeal and a stay order should not be granted. It is submitted that the motion judge did not err in reaching his decision. In particular, the Respondent Father submits that:

(a) there is not a conflicting decision which is relevant to this case;

(b) even if there is a conflicting decision, it is not desirable that leave to appeal be granted;

(d) the proposed appeal does not involve matters of such importance that leave should be granted.

[10] As for stay pending appeal, the motion judge considered the circumstances surrounding the Applicant Mother’s move in reaching his decision. She unilaterally changed her residence without warning or notice to the Respondent Father. Her financial harm does not equate to irreparable harm which may be caused to the children. There is no conclusion that she would likely be successful on the issues of custody and access at trial. A stay order pending appeal would reward the Applicant Mother for her self-serving behaviour and the children’s contact with the Respondent Father would be drastically diminished. It is submitted that it is not in the best interests of the children for the order of the motion judge to be stayed.

ANALYSIS

Reasons of the Motion Judge

[11] The motion judge found that the Applicant Mother in late August 2013 relocated her residence and that of her three children from the Algonquin Highlands in Haliburton County to Barrie. The children are three boys, Rylie age 10, Stephen age 8 and Benjamin age 3. The move was unilateral by the Respondent Mother without any warning or notice to the Respondent Father. She enrolled the children in school at Barrie. She leased a residence in Barrie and enrolled in Georgian College.

[12] The evidence indicated that the children had resided in Haliburton County since 2010 with the Applicant Mother and the Respondent Father. The evidence further indicated that the older two children were students at an elementary school in Minden within the jurisdiction of the Trillium Lakelands District School Board. Rylie and Stephen benefited from a Literacy Intervention Program and Speech Language Pathology/Individual Education Plan respectively.

[13] The motion judge addressed the law regarding the issue of interim mobility orders and cited the case of Plumley v. Plumley. He correctly cited the factors to be considered in deciding the mobility issue on an interim basis:

(a) a court will be reluctant to upset the status quo on an interim basis and permit the move where there is a genuine issue for trial;

(b) a court should consider compelling circumstances that might favour the move, such as a financial benefit to the family unit or that the best interests of the children dictate that they commence school at a new location; and

(c) even where there is a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parents’ position will prevail at trial.

[14] He applied these criteria and was of the view that the Respondent Father’s position must prevail. He held that the status quo up until August 30, 2013 reflected the children’s residence in Algonquin Highlands and their life was in Haliburton County. While he acknowledged that the Applicant Mother was the primary caregiver as part of the status quo he considered that fact in light of the children’s overall situation including the extended family and the community in which they resided.

[15] He was not persuaded that there were compelling circumstances favouring the move to Barrie and considered the Applicant Mother’s unilateral decision to make the move, lease premises and enrol the children in school in Barrie. There was no financial benefit to the family unit living in Barrie. He was not satisfied that a change in schools was in the best interests of the children. He held that there were certainly genuine issues for trial. He concluded that the Applicant Mother’s case was not strong, that it could lead one to presume that she would prevail in her position. He noted that there had been no previous adjudication on the issue on a final or substantive basis. He concluded that this was not a situation where the Respondent Father was bringing a motion to change based on a material change in circumstances. He also went on to note that the evidence in the record to date was widely disparate on the issues of parenting and the best interests of the children.

[16] The motion judge concluded that it was not in the best interest of the children that they should be moved to Barrie and from the school where they had been placed for almost three years. He went on to find that moving the children to a new community and new school constituted a “seismic shift” and not one that should be sanctioned by the court on an interim basis in the absence of compelling reasons.

[17] The motion judge ordered the following:

In the circumstances, there will be an interim order:

That the Applicant mother shall not relocate the residence of the children outside the County of Haliburton;
That the children shall be re-enrolled in Archie Stouffer Elementary School in Minden Ontario;
The AM shall comply with this order by Friday October 18, 2013;
The AM shall have primary care and control of the children on a temporary, without prejudice basis with liberal access to the RF until the earliest of the date when the children are returned to Haliburton and October 18, 2013;
The parties shall have shared custody on a week about basis commencing on the earliest of the first Friday following the children being returned to Haliburton and October 18, 2013. The week about access shall be from Friday to Friday and the access exchange shall take place at the end of the school day at Archie Stouffer Elementary School;
This interim mobility and interim custody and access order is on a temporary, without prejudice basis.
The issue of jurisdiction is not an urgent matter. That part of the motion is adjourned to a date to be assigned by the trial coordinator.

THE LAW

The Test for Leave to Appeal

[18] The test for leave to appeal an interim or interlocutory order is governed by Rule 62.02(4) of the Rules of Civil Procedure which sets out the two independent grounds upon which leave to appeal an interlocutory order 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.

[19] Leave to appeal may be granted if either of the above grounds is satisfied. With respect to the ground which is set out in Rule 62.02(4)(a), the requirement of a “conflicting decision” is satisfied by demonstrating a difference in the principles chosen as a guide to the exercise of discretion.[^1]

[20] With respect to the first conjunctive ground for granting leave under Rule 62.02(4)(b), above, a judge hearing a motion for leave to appeal need not consider the decision in question to be wrong or even “probably wrong” in order to have good reason to doubt its correctness. As well, the judge need not conclude that, if he or she had heard the original motion, he or she would have decided it otherwise. The judge must only be satisfied that the correctness of the order is “open to very serious debate”.[^2]

[21] The second conjunctive ground in Rule 62.02(4)(b) requires that the proposed appeal involve matters of general importance, not merely matters of particular importance to the individual litigants. General importance relates to matters of public importance, the development of the law and the administration of justice, so as to warrant consideration by a higher level of judicial authority.[^3]

Rule 62.02(4)(a) – Conflicting Decision

[22] The motion judge ordered a custodial regime that did not exist prior to the Applicant Mother moving to Barrie with her three children. While he ordered that she have primary care and control of the children on a temporary, without prejudice basis, with liberal access to the Respondent Father until the earliest of the date when the children were returned to Haliburton and October 18, 2013, he then ordered shared custody on a week about basis following the children being returned to Haliburton. He addressed the same “shared custody” in the same paragraph as he described the arrangement as “week about access” and access exchange at the end of the school day at their elementary school.

[23] The children are being placed on a week about regime for custody and access which never previously existed where the Applicant Mother had no residential location in the Algonquin Highlands/Haliburton which could satisfy the week about contemplated. While the motion judge indicated that the intention was to preserve the status quo as being a “status quo of substance”, the only part of the status quo being preserved, was that of the children’s school in Minden.

[24] The balance of the motion judge’s order creates and speaks to the new regime for custody and access.

[25] In Perchaluk v. Perchaluk 2012 ONCJ 525, [2012] O.J. No. 3988 (OCJ) at para. 29, the Court sets out the test for changing the status quo on an interim motion prior to trial in a custody and access matter:

As stated by Justice McKinnon in Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5^th) 326 (S.C.J.), at paragraph 15:

…generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. This is so, whether the existing arrangement is de facto or de jure: See McEachern v. MaEachern (sic) (1994), 1994 7379 (ON SC), 5 R.F.L. (4^th) 115 (Ont.Gen.Div.); Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331 (C.A.)

The rationale for this principle lies in the fact that there is a concern for fairness to the parties and a concern for the best interests of the child. Generally, it is not in the best interests of a child to change the residential arrangements if there is a possibility of yet another change because of a pending trial. (See Copeland v. Perreault, 2007 ONCJ 217, [2007] O.J. No. 1889 (O.C.J.) at para. 49.)

[26] In Perchaluk, the Ontario Court of Appeal decision Papp v. Papp is referenced which continues to be a binding decision regarding interim changes to the status quo in a custody and access matter.

[27] I find that there is a conflicting decision at the appellate level regarding a change to the status quo on an interim custody motion where in the absence of compelling reasons for change to meet the children’s best interests. In my opinion, for these reasons, it is desirable that leave to appeal be granted.

Rule 62.02(4)(b) – Reason to doubt correctness/importance

[28] The position of the Respondent Father is that the Applicant Mother cannot meet the heavy burden on this motion for leave to appeal. The motion judge’s decision is correct and the matter of importance relates only to the parties. There is no basis upon which to grant leave. This Court should dismiss the motion for leave.

[29] With respect, I do not agree. I find that the correctness of the decision is open to “very serious debate”. There is good reason to doubt the correctness of the order of the motion judge as he did not consider the Applicant Mother’s financial situation living in Barrie as opposed to Haliburton County in circumstances where there was substantial inequality regarding her status as opposed to that of the Respondent Father. There was evidence that the Respondent Father or his family had connections with most of the businesses operating in the Haliburton County area. There was evidence of her inability to obtain appropriate accommodations due to the lack of available cities and towns in the area and lack of suitable accommodations in the few towns that do exist there. I accept the submission that the motion judge did not consider properly the problems that the Applicant Mother would have attempting to return from Barrie to Haliburton County with three young children with no income or job opportunities available to support herself or the family. Further, she had no accommodation that could even make shared custody and access possible. Neither did the motion judge consider the adverse circumstances in which the Applicant Mother and children would be placed by his order to return to Haliburton County where there were allegations of violence and abuse against herself and the children by the Respondent Father.

[30] In addition, the motion judge did not consider the Respondent Father’s ability to care for the three children where he would be working during the day and returning home after work.

[31] While the motion judge did give considerable thought to what was in the best interests of the children, there is some serious debate as to whether he adequately considered the Respondent Father’s ability to act as parent in the context of the Applicant Mother’s allegations of violence and abuse. There is good reason to doubt the correctness of the order where the motion judge ordered a new and drastically different custody/access arrangement where none had previously existed and without compelling evidence supporting same.

[32] As for importance, the importance of this matter is not restricted as between the parties. Rather, it concerns the broader issues involving change to the status quo of custody and access on an interim basis in mobility cases.

[33] The motion judge noted that the evidence in the record to date was widely disparate on the issues of parenting and the best interests of the children. Nevertheless, he ordered the week about custody. There is very serious debate in respect of the correctness of his decision to impose a radically new custody/access regime on the lacking evidentiary record before him.

[34] Also, there is serious question as to whether the order made by the motion judge regarding shared custody was ever capable of being complied with by the parties due to:

• the limited financial means of the Applicant Mother

• the unequal financial circumstances between the Applicant Mother and the Respondent Father

• no accommodation for Application Mother to return to in Haliburton County with her children in which to establish her home for shared custody and the allegations of abuse and violence against the Respondent Father.

[35] Accordingly, on this branch of rule 62.02(4)(b) not only is there good reason to doubt the correctness of the order in question but also the proposed appeal involves matters of importance which supports the granting of leave to appeal.

STAY PENDING APPEAL

[36] I have considered the tests set out by Laskin J.A. as reflected in Jones v. Jones (supra). I am satisfied that the appeal raises a serious question as to the correctness of the decision regarding the change in status quo on an interim basis in mobility cases. I am persuaded that the Applicant Mother will suffer irreparable financial harm if she is forced to move her residence from Barrie to Haliburton County. The balance of convenience in this matter strongly favours a stay. The children are enrolled and attending school in Barrie. Having them change schools pending the resolution of the custody and access issue should be kept to a minimum. The children can continue to live with their mother with access to the Respondent Father on the week-ends and during the week.

DISPOSITION

[37] For the reasons above, leave to appeal the decision of McCarthy J. dated September 19, 2013 to the Divisional Court is granted. Further, an order granting a stay of his Order is also granted pending appeal. The motion of the Respondent Father is dismissed.

[38] The parties have agreed that costs are to be determined by way of written submissions. Parties are to exchange a concise summary regarding costs no longer than two pages together with Bills of Costs, Costs Outline and relevant authorities within 14 days of this decision. Within that time, they are to deliver their written submissions to my judicial assistant at Barrie.

DiTOMASO J.

Released: October 21, 2013

[^1]: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div.Ct.) at 544

[^2]: Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.) at 284

[^3]: Ash v. Lloyd’s Corp. supra at p. 284-285

Howe v. Kegel, 2013 ONSC 6563

Case Summary

THE MOTIONS

REASONS

POSITION OF THE PARTIES

Position of the Applicant Mother

Position of the Respondent Father

ANALYSIS

Reasons of the Motion Judge

THE LAW

The Test for Leave to Appeal

Rule 62.02(4)(a) – Conflicting Decision

Rule 62.02(4)(b) – Reason to doubt correctness/importance

STAY PENDING APPEAL

DISPOSITION

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 3