NAPANEE COURT FILE NO.: 553/13
DATE: 2014 Dec 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Frank Collins and Jeanne Collins
Applicants/Respondents on Motion
– and –
Rebecca Towns Collins
Respondent/Moving Party
– and –
Michael Robert Collins
Respondent/Respondent on Motion
Christina T. Rorabeck, for the Applicants/Respondents on Motion
Lucienne MacLauchlan, for Rebecca Towns Collins, Respondent/Moving Party
Sheri Thompson, for Michael Robert Collins, Respondent/Respondent on Motion
HEARD: December 15, 2014 at Napanee
tRANMER, j.
DECISION ON MOTION FOR LEAVE TO APPEAL
[1] The mother seeks leave to appeal the decision dated December 3, 2014 of Mr. Justice Abrams.
[2] The mother has sole custody of the five children of the marriage and one stepchild. There is an order that the father have supervised access. The grandparents were enjoying liberal access up until about a year ago when the mother terminated their access.
[3] This Application is brought by the grandparents for access.
[4] In his decision of December 3, 2014, Justice Abrams granted interim temporary access to the grandparents on motion. It is this order that the mother seeks leave to appeal.
POSITION OF THE MOVING PARTY
[5] The mother relies on section 64 of the Children's Law Reform Act, pursuant to which “In considering an application under this part, a court where possible, shall take into consideration the views and preferences of the child to the extent that the child is able to express them.” Subsection 2 of the section states, “The court may interview the child to determine the views and preferences of the child.”
[6] The mother notes that in his reasons, Justice Abrams stated, “while the views and preferences of all of the children are not before the court at this time, Chloe’s voice, which may fairly represent the fears of the other children comes through loud and clear… .”
[7] The major thrust of the mother’s submission is that the children made it known to Justice Abrams that they wished to speak to him, but that he did not interview them. The mother also notes that while the Office of the Children's Lawyer has been appointed in the father's companion action, Justice Abrams did not wait for that report to be produced for the purposes of his interim decision.
[8] The mother notes there was evidence before Justice Abrams that the children did not wish access with their grandparents, but he made no reference to such evidence in his reasons. The mother submits that, therefore, Justice Abrams ignored that evidence.
[9] The mother relies upon Rule 62.02(4)(b), the second prong of the test for leave to appeal. She notes that, with respect to the “good reason to doubt the correctness of the order in question,” the test is, is the leave judge satisfied that the correctness of the order is “open to very serious debate?”
[10] On this point, she notes Justice Abrams stated that it was the mother who alleged sexual abuse against the father. She submits that he was in error en masse in that it was the child Brianna, who did so. She submits the most notable error by the judge was his statement that the wishes of the children were not before the court. He points out that in this regard, there was evidence from the mother and the Salvation Army in regard to the children's resistance to access. She takes issue with the judge’s characterization that rules for access imposed by the mother were arbitrary. She submits that the judge failed to take into consideration the high conflict between the mother and the grandparents in combination with evidence that the mother was well able to meet the needs of the children.
[11] She also notes that while the eldest child, age 14, was never subject to an order for access, Justice Abrams ordered her to attend for access as well.
[12] With respect to the “matters of such importance” question, she concedes that this requires more than merely matters of particular importance to the individual litigants, but rather 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. She submits that the legislated requirement to take into consideration the views and preferences of the child, and in her submission, Justice Abrams’ failure to do so, puts this case into the class of one of the necessary importance.
[13] The thrust of this motion for leave to appeal is that the children asked to speak to the judge, and he declined to do so, he failed to consider evidence that the children indicated by their behaviour that they did not wish access and he failed to wait for the report of the OCL.
POSITION OF THE RESPONDENTS
[14] The Respondents oppose the motion for leave.
[15] The Respondent father notes that it is highly significant that the motion for interim access was first before Justice Abrams on July 14, 2014. His order of that date makes it clear that he was concerned that there be evidence of the views and preferences of the children insofar as he ordered observational visits between the children and the grandparents in advance of the hearing for interim relief scheduled for September 15, 2014. The reports contain evidence of the views and preferences of the children and were filed in evidence for the September 15, 2014 hearing of the motion.
[16] The Respondent grandparents note that the learned justice applied the applicable law to the facts that he found. They note that his decision is, by law, entitled to deference and as well that the test for leave is a high one.
ANALYSIS
[17] It is significant that the motion for interim access was first before Justice Abrams on July 14, 2014. At that time, Justice Abrams ordered that the father’s access time under Salvation Army supervision be shared with the grandparents to allow for observation visits between the children and the grandparents to afford the court evidence by way of observational notes at the return of the matter on September 15, 2014. He ordered that those observational notes prepared by the Salvation Army were to be produced in advance of the return of the matter on September 15, 2014. He made specific orders to ensure that the children participated in these access visits, excepting Mikayla, and Nicholas to some extent.
[18] This clearly indicates that Justice Abrams was well aware of the importance of independent evidence of the views and preferences of the children being available for the purposes of the motion.
[19] The observational notes were available for the hearing on September 15, 2014. These describe the interaction between the children and their grandparents.
[20] The notes, in particular, describe the attendances by Nicholas, Noah, Sophie and Chloe. Justice Abrams’ comment in his reasons, that “while the views and preferences of all of the children are not before the court…,” , can reasonably be taken to be a reference to the absence of evidence of Mikayla’s views and preferences.
[21] As I have indicated, Justice Abrams was alive to the importance of the views and preferences of the children being before the court in making his order of July 14, 2014.
[22] Justice Abrams had before him the affidavit sworn September 10, 2014 of the mother to which was attached at Exhibit C a note from Chloe. He also had before him the observational notes that he had ordered which indicated reluctance on the part of Nicholas, Noah and Sophie to visit. He also had before him the letter dated October 10, 2014 from the Salvation Army, which indicated there were issues of the children refusing to attend visits and efforts undertaken to remedy this situation unsuccessfully.
[23] It cannot be assumed that the Justice did not consider this evidence because he did not make specific reference to it in his reasons.
[24] Justice Abrams did specifically refer to the criminal proceedings against the father and the mother’s complaint that the grandparents were undermining court orders restricting the father’s access to the children.
[25] While the mother complains that it was an error for Justice Abrams not to interview the children as requested, that was a matter to be exercised by him in his discretion. There was considerable evidence before Justice Abrams as to the views and preferences of the children that were both for and against access.
[26] Justice Abrams sought and obtained independent evidence of the views and preferences of the children by way of the observational notes, which were more readily available for the interim motion than awaiting the report of the OCL, which is still not available. His decision is entitled to deference. Saunders v. Saunders 2012 ONSC 7302.
[27] Justice Price of this court in Bergen v. Sharpe 2011 ONSC 1930 has noted that the rules make it clear that it was the legislature’s intent to discourage appeals from interim orders except in extraordinary circumstances (paras. 42 to 46). I cannot find that the correctness of Justice Abrams’ decision is open to very serious debate. I cannot find that his decision gives rise to any matter of such public importance so as to require scrutiny by a higher court. He made no ruling to the effect that the views and preferences of the children were not required or important, and he did not fail to find evidence of and consider the children’s views and preferences.
[28] The misstatement that it was the mother who reported the abuse rather than the daughter is, in my view, not significant and certainly does not push this case over the threshold required for the granting of leave to appeal.
[29] This motion for leave to appeal the decision of Justice Abrams of December 3, 2014 is, for these reasons, dismissed.
Honourable Mr. Justice Gary W. Tranmer
Released: December 17, 2014
NAPANEE COURT FILE NO.: 553/13
DATE: 2014 Dec 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Frank Collins and Jeanne Collins
Applicants/Respondents on Motion
– and –
Rebecca Towns Collins
Respondent/Moving Party
– and –
Michael Robert Collins
Respondent/Respondent on Motion
DECISION ON MOTION
FOR LEAVE TO APPEAL
Tranmer, J.
Released: December 17, 2014