SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS 3710-14
DATE: 20141117
RE: Amber Lee Moffatt, Applicant, Respondent in the Appeal
AND:
Jason Miller, Respondent, Appellant in the Appeal
BEFORE: Ellies J.
COUNSEL:
Ed Rae, for the Appellant
Geoff Laplante, for the Respondent
HEARD: November 14, 2014
ENDORSEMENT
[1] The appellant father moves for a stay of the order of the trial judge by virtue of which the primary residence of the children was changed from that of the appellant to that of the respondent mother. The appellant argues that two main errors occurred in the Ontario Court of Justice trial, namely:
(1) the trial judge misapprehended the evidence in finding that the appellant had misled the court to obtain temporary custody of the children pending the trial, upon which misapprehension he relied in making his decision; and
(2) the trial judge “descended into the arena” during the trial on behalf of the respondent, thereby creating a reasonable apprehension of bias on the part of the trial judge.
[2] Pursuant to s. 74 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA” ), the trial judge’s order is effective even if an appeal is taken from it, unless either the trial court or the appeal court orders otherwise. The onus, then, is on the appellant to satisfy the court that a stay should be granted. However, it is not easy to discern exactly what the appellant must do to satisfy that onus.
What analytical framework applies?
[3] In Smith v. Galarneau, 57 O.T.C. 379, [1998] O.J. No. 893 (Ont. S.C.), J. Wright J., suggested the following “rough guide” for handling motions to stay a custody order pending appeal, at para. 9 (O.J.):
- 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
- 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
- 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
- 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.
[4] This guide has been referred to and relied upon in other Superior Court decisions since: see, for e.g., Bergen v. Sharpe, 2011 ONSC 930, at para. 87, and Jones v. Jones, 2013 ONSC 1876, at para. 33.
[5] With respect, however, I have two difficulties in applying this framework to the case at bar. First, it poses problems where the finding at trial was that the primary caregiver was unfit, but where the appeal on that ground has significant merit. On the basis of this framework, the child would be uprooted to begin residing with the other parent pending the appeal in circumstances where the child may very well be returned to the other parent afterwards.
[6] More importantly, the decision in Smith preceded the decision of our Court of Appeal in Lefebvre v. Lefebvre (2002), 2002 17966 (ON CA), 167 O.A.C. 85, [2002] O.J. No. 4885, in which it was held that an appellant seeking a stay of an order changing custody must satisfy essentially the same test that applies where a party seeks an interlocutory injunction or a stay in any civil case. In Lefebvre, at para. 6 (O.J.), Laskin J.A. held that the party seeking a stay in a custody case must demonstrate:
(1) that the appeal raises a serious question that the trial judgment is wrong;
(2) that the children will suffer irreparable harm if the stay is not granted; and
(3) that the balance of convenience favours a stay.
[7] Again with respect, there are also problems with this framework. It may work well in cases where money is at stake, but it is not as easily applied in cases where what is at stake is a child’s best interests. One problem arises from the wording of the second part of the test. It refers not just to harm, but to “irreparable” harm. In the standard civil case, the focus when considering this factor is on whether money can repair the harm in question. However, it is difficult to see what could ever repair the harm a child might suffer if a stay is not granted in a custody appeal, or why a court would allow any harm, reparable or not, to come to a child if it could be avoided altogether. Perhaps for this reason, courts considering this branch of the test have held that any harm to the parties from the denial of a stay is subordinate to the best interests of the children (: see Bergen, at para. 87).
[8] The third factor from RJR-MacDonald also poses difficulties when transplanted into a custody appeal. In a case that was decided after RJR-MacDonald, but before his decision in Lefebvre, Laskin J.A. held in Barnes v. Parks (2001), 2001 24146, at para. 2, that the governing principle where a court is asked to grant a stay of an order changing custody is that “a stay should be granted if it is in (the child’s) best interests to do so”. If the child’s best interests are the paramount consideration in determining whether a stay should be ordered in a custody appeal, it is hard to understand when, if ever, those interests should be made subordinate to the balance of convenience.
[9] I am not the first to recognize the problems that arise in applying the usual test for a stay to custody appeals. In Alberta, the Court of Appeal has held that the RJR-MacDonald test must be modified in cases involving custody and access such that the second and third branches of the test are considered together to reflect the best interests of the children: C.L.S. v. B.R.S., 2013 ABQB 574, at para. 4, citing C.B. v. P.C., 2003 ABCA 321, among other cases. In C.L.S., at para. 6, Manderscheid J. quoted from the decision of the Alberta Court of Appeal in A.G. v. J.B, 2008 ABCA 61, in which Watson J.A. wrote:
Irreparable harm and balance of convenience in the context of family law cases relating to the well-being of children is a complex and somewhat different type of consideration than it is in civil cases where money or property is involved. This court has recognized that, in considering a stay in custody or access cases, a modified tripartite test applies to reflect the paramount importance of the best interests of the child. Those interests will ultimately determine the balance of convenience: [Citations omitted].
[10] Recently, the Alberta analysis has been imported into Ontario. In Mudry v. Danisch, 2014 ONSC 4335 (Div. Ct.), at para.167, Sanderson J. also quoted from the decision in A.G., in which it was held that the three parts of the test must be looked at “holistically, connecting irreparable harm with balance of convenience when little children are involved”.
[11] It seems to me that our own Court of Appeal took a holistic approach in a case decided prior to both RJR-MacDonald and Lefebvre. In Bijowski v. Caicco (1985), 1985 4996 (ON CA), 45 R.F.L. (2d) 266, [1985] O.J. No. 1550, Finlayson J.A. applied a test that focused on just two things, namely, the merits of the appeal and the effect of a stay on the child in the event that the appeal succeeded. He wrote, at para. 13 (O.J.):
I am concerned here only with the welfare of the child and if I felt that there was a strong possibility that the judgment or order [appealed from] would be reversed on appeal, then of course it would not be in the best interests of the child to have the custody order enforced and then involve the child in the trauma of being sent back many months later to the father.
[12] Based on these cases, I do not believe it is necessary to adhere slavishly to the three-part test from RJR-MacDonald when determining whether to issue a stay from an order changing custody. What matters is whether the child’s best interests are likely to be adversely affected if a stay is not granted pending the outcome of the appeal. In order to make this determination, some assessment of the merits of the appeal must be made. Unfortunately, the extent of this assessment is not clear from the jurisprudence, regardless of the analytical model employed.
The merits of the appeal
[13] In RJR-MacDonald, the Supreme Court held that the threshold with respect to the first part of the inquiry is a low one. There must be a “serious question” in the sense that the issue to be tried (or appealed, as the case may be) must be neither “vexatious nor frivolous” (: para. 50). In Bijowski, Finalyson J.A. referred to the “strong possibility” of success. In Smith, Wright J. used the words “significant chance” when addressing the appeal’s potential success. However, in determining whether the appeal had merit in Barnes, Laskin J.A. did not refer to any of these. Instead, he set out to determine whether the appeal had “little chance” of success (: para. 7).
[14] If there is a difference in these thresholds, then I believe that I am bound by the Court of Appeal’s decision in Lefebvre, which adopted the threshold in RJR-MacDonald. Applying that threshold, I have concluded that there is a serious issue for appeal and that the appeal is neither vexatious nor frivolous.
[15] It is not possible at this stage, in my view, to determine the merits of the appellant’s second main contention, that is, that the trial judge descended into the arena and created a reasonable apprehension of bias as a result of his intervention. It is not possible on the record I have before me to determine whether the appellant’s apprehension is reasonable. The transcripts have not yet been prepared and I have not been provided with any more information about the alleged bias than that the trial judge asked leading questions and did so in a way that deprived the appellant of the opportunity to ask follow-up questions of his own. That is not enough to allow me to assess the strength of this ground of appeal, even on the low threshold set out in RJR-MacDonald.
[16] However, I do have enough before me to make a determination of the merits of the appellant’s other primary complaint, namely that the trial judge misapprehended what had occurred when the appellant obtained temporary custody without notice to the respondent.
[17] The parties agree that the trial judge reviewed all of the relevant factors relating to custody and access set out in s. 24 of the CLRA and found that they weighed equally in favour of both parents. With respect to the question of the status quo, however, he held that the appellant had failed to advise the court during the ex parte motion that the children were in no danger despite the apparent difficulties the respondent was experiencing at the time. To paraphrase, he held that the appellant had failed to make full disclosure because he failed to advise the court that there was another person available to care for the children during the respondent’s difficulties, namely the respondent’s sister. As a result, the trial judge found that the appellant had improperly managed to obtain custody of the children and that, therefore, the status quo at the time of the trial ought not to weigh in his favour.
[18] It is trite to say that a party applying for an ex parte order must make full, frank and fair disclosure in doing so. However, there is evidence before me that the appellant met that obligation. In an affidavit sworn on October 7, 2013 and filed in support of the ex parte order granted by the trial judge on October 18, 2013 the appellant deposed (at para. 9) that:
Arrangements were made with the applicant’s sister, Dawn Moffat and she met me to pick up William and Jack at 3:00 PM in the parking lot of Tammie’s, a North Bay restaurant. After the children were returned to the mother by her sister, Amber refused to care for the children that night. Amber Moffat indicated that she may harm our children if Dawn did not come and pick them up right away. Her sister acknowledged this and followed up by promptly ensuring that the children were removed from the mother’s care.
[19] Further, the temporary order made by the trial judge on October 18 was reviewed by another Ontario Court judge on November 22, 2013 after the respondent had been provided with an opportunity to respond. A transcript of those proceedings indicates that the presiding judge went to considerable lengths in questioning the respondent to determine the best interests of the children, following which he confirmed the earlier order. If the appellant obtained temporary custody improperly on October 18, it is difficult to see how it was obtained improperly thereafter. It does not appear from the transcript of the confirming judge’s reasons that the status quo as at November 22 had anything to do with his decision. However, if the status quo had any effect on the confirming judge’s decision of that date, it could not have played much of a role, given that it had existed for little more than one month.
[20] Given the express finding by the trial judge that all other things between the parties as parents were equal and the reliance he placed on what occurred in the earlier proceedings, it cannot be said that any error made by the trial judge in this respect had no effect on the result.
[21] For these reasons, I find that the appeal raises a serious issue to be determined on the appeal.
The effect of a stay on the children
[22] The appellant lives in MacTier. The respondent now lives in North Bay. The children lived in MacTier until the parents separated in either October of 2011 or January of 2012. From that date until the appellant was given custody, the children had their primary residence with the respondent in North Bay, but the appellant had liberal access, except in the period from October to late December, 2012 when he was working in Montreal. The appellant had the children exclusively during the month of August, 2013 when the respondent was engaged in a skateboarding event. Of course, the children have had their primary residence with appellant since the ex parte order was made in October of 2013.
[23] The children are still young, ages four and five. They are enrolled in junior and senior kindergarten, respectively. A move to North Bay pending the hearing of the appeal followed by a move back to MacTier if it succeeds would be disruptive, although not to the extent it would be if they were older.
[24] This is not a case in which either parent has been found to be better than the other, except for the trial judge’s finding that the appellant misled the court to gain custody. There is no evidence that the children would be better off with the respondent mother in North Bay than they are with the appellant father in MacTier.
[25] In these circumstances, it is my view that there is a greater risk of harm to the stability of the children’s lives by not granting a stay than there is by granting it.
Conclusion
[26] For these reasons, the motion is granted. The trial judge’s order of November 12 shall be stayed pending further order of this court.
[27] Unless the appellant makes submissions in writing within five days of the date of the release of these reasons, and the respondent within 10 days thereof, if at all, there will be no order as to costs of the motion.
Ellies J.
Date: November 17, 2014