A.H. v. L.W., 2014 ONSC 7486

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS 11-218

DATE: 20141229

BETWEEN:

A.H.

Carol Allen, for the Applicant

Applicant

• and -

L.W.

Elli Cohen, for the Respondent

Respondent

HEARD: December 19, 2014

REASONS FOR DECISION ON MOTION FOR LEAVE TO APPEAL

Conlan J.

I. INTRODUCTION

1The Applicant father, A.H., and the Respondent mother, L.W., are the parents of a young boy who was born in […] 2010 (now four years old).

2The parties were together for a few years until they separated in July 2011. They were never married.

3A.H. commenced his Application in July 2011, seeking sole custody of the child, or joint custody of the child with primary residency with the father, or joint custody on a shared parenting regime.

4In her Answer, the mother sought sole custody, or joint custody with primary residency with the mother.

5The proceeding has been relatively stagnant since 2011.

6The matter shall proceed to a Trial Management Conference and be placed on the trial list forthwith. The father shall pass the Trial Record as soon as possible. Once that is done, counsel shall contact the trial coordinator in Owen Sound to ensure that the matter is placed on the Assignment Court list in Owen Sound for February 2, 2015 at 10:00 a.m.

7As the Local Administrative Justice for Grey and Bruce Counties, I direct that the matter shall be given priority as there are important custody and access issues to be decided on a final basis.

8On consent of both parties, I make an Order that counsel for the child and a clinical assistant from the Office of the Children’s Lawyer be appointed.

9The Trial Record can always be amended, if necessary, down the road.

II. THE DECISION UNDER REVIEW

10On September 26, 2014, Emery J. heard Motions brought by each party. The father wanted custody of the boy, and likewise for the mother. The Justice reserved his decision.

11In a typed Endorsement (eight pages) dated October 17, 2014, the Justice granted temporary custody of the child to the father and specified access to the mother.

12Understandably, L.W. is not happy with that result. She moves for leave to appeal the Temporary Order to the Divisional Court.

13Counsel were of able assistance to me in both their written and oral submissions. Motion Records, Facta and Books of Authorities were filed. Submissions were heard at Court in Owen Sound on December 19, 2014.

14After hearing the submissions by counsel, I indicated that the mother’s Motion for leave to appeal was dismissed, with written reasons to follow. These are those reasons.

III. THE LAW

15There is no dispute between the parties on the test for leave to appeal the Temporary Order in question.

16On a balance of probabilities, the mother must satisfy me of one (not both) of these conditions: (i) that there is a conflicting Court decision on the matter at hand, and it is desirable for leave to appeal to be granted (the “first condition” or “condition number one”); (ii) that there is good reason to doubt the correctness of the order made, and the proposed appeal involves a matter of such importance that leave to appeal should be granted (the “second condition” or “condition number two”).

17The actual language of subrule 62.02(4) of the Rules of Civil Procedure is as follows.

Grounds on Which Leave May Be Granted

(4) 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. R.R.O. 1990, Reg. 194, r. 62.02 (4).

18It is often overlooked that, while satisfaction of either condition is sufficient, fulfillment of the whole condition is necessary. For example, establishing on balance that there is a conflicting Court decision is not sufficient unless it is also found that it is desirable for leave to appeal to be granted. The former does not necessarily lead to the latter.

19It is not for me to decide whether I would have made the same decision as the Justice who heard the Motions. This is not a re-hearing. Wiedrick v. LeMesurier, 2006 919 (ON SC), at paragraph 4.

20Concerning the expression “conflicting decision”, I adopt the following passage at paragraph 14 of the decision of Bondy J. in Ramsey v. Weisenbacher, 2012 ONSC 6938.

14The meaning of the words “conflicting decision” does not mean a different result because of different circumstances but rather the difference in the principles chosen as a guide to the exercise of such discretion: see Ventresca v. Ventresca, [2003] O.J. No. 5509, at para. 18

21In terms of the first part of the second condition, whether there is good reason to doubt the correctness of the order made simply means whether it is open to serious debate. Ramsey, supra, at paragraph 17.

22Regarding the latter half of condition number two, it should be noted that every Court decision is relatively important to the parties themselves. That is no reason to grant leave to appeal whenever someone is perturbed by the result. It is necessary that the issue be one of broad significance or general application that warrants resolution by an appellate Court. The issue(s) must extend beyond the interests of the parties. There must be a reason why appellate review is necessary, for example, to clarify or develop the law. Rankin v. McLeod, Young, Weir Ltd., et al., 1986 2749 (ON SC).

IV. ANALYSIS

23Justice Emery was confronted with a difficult situation. There were competing Motions seeking custody of the boy. He had three choices. Side with the father; side with the mother; or dismiss both Motions and make no custody order.

24After reserving to think about the matter, the Justice chose the first option and gave thorough written reasons for doing so.

25At paragraph 14 of his decision, the Justice properly cited the best interests of the child test.

26At paragraphs 15 and 16 of his decision, the Justice properly cited the governing authority on when a joint custody arrangement is appropriate, Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275 (C.A.).

27The Justice gave reasons for his determination that joint custody was not suitable for these parties.

28The Court then went on in the decision, at length, to discuss the factors under section 24 of the Children’s Law Reform Act.

29Overall, in my opinion, any criticism of the sufficiency of the Justice’s reasons is without merit. The Court is not required to write a treatise on family law every time a temporary order is made.

Condition Number One – Conflicting Decision? Desirable for Leave to Appeal to be Granted?

30The mother filed several decisions that stand for the proposition, generally stated, that Courts should not make interim orders that disturb the status quo on custody and access except in situations where there is significant or compelling evidence to justify the change. Dorion v. Merkley-Dorion, 2005 46748 (ON SC); Samson v. Samson, 2006 42645 (ON SC); Papp v. Papp, et al., 1969 219 (ON CA); Watts v. Grove, 2000 CarswellOnt 848 (S.C.J.); McCarthy v. Scheibler, 1999 CarswellOnt 3419 (S.C.J.); and Kimpton v. Kimpton, 2002 2793 (ON SC).

31I accept that proposition. That is the law. It is well-established.

32What I do not accept is the submission by the mother that the decision of Emery J. is in conflict with the current state of the law as outlined in any of the decisions cited or in any decision that I am aware of.

33The Justice was confronted with a case where, since March 2012, the parties had shared time with the child on a roughly equal basis. There is nothing in the decision of the Justice which indicates that he misunderstood or ignored that fact. Indeed, at paragraph 18 of the decision, the Court explicitly recognized the equally strong love, affection and emotional ties that each parent has with the boy.

34Justice Emery is presumed to know the law, especially something as well-established as, on a motion, the importance of maintaining the status quo on custody and access unless there is sufficient reason to change it, in the best interests of the child.

35There is nothing in the reasons of the Justice which suggests that he interfered lightly with the status quo. The determination that a change was necessary was made only after a detailed examination of all of the factors in the legislation that inform what is in the best interests of the child.

36Further, the Justice set out in his decision what the compelling reasons were to alter the status quo on a temporary basis, most significantly what happened in Barrie, Ontario (paragraphs 8, 9, 10, 16 and 29 of the decision).

37From a reading of the reasons as a whole, it is obvious that Emery J. was deeply concerned about what transpired in Barrie. That concern is understandable.

38On the heels of a dispute between the parties as to where the child would attend school, the mother brought a motion in Barrie, without notice, to effectively shut the father out of the child’s life. That was done without advising the Court in Barrie that there was an active file in Owen Sound. That was done, at least in part, on the basis of an old and very minor assaultive incident between the father and the mother and an alleged threat that the father had recently made against the mother.

39When she was challenged on what she had done, L.W. very quickly reversed her position and agreed to vacate the draconian relief obtained in Barrie and have the matter returned to Owen Sound.

40It is reasonably arguable that this past conduct by the mother, which Justice Emery found was relevant to her parenting ability, in and of itself, was a compelling reason to justify a change to the status quo.

41Having set out what compelling reasons existed to change the status quo, it cannot be said that Justice Emery’s decision in any way conflicts with the jurisprudence relied upon by L.W.

42In the circumstances, it is unnecessary for me to address the second part of condition number one – whether it is desirable that leave to appeal be granted. Suffice it to say that, in my opinion, it is not.

Condition Number Two – Good Reason to Doubt the Correctness of the Order? Such Importance that Leave to Appeal should be Granted?

43In my view, the decision of Emery J. is not open to serious debate.

44I have been careful to not set the bar too high. I need not find that the decision is wrong or even likely or probably wrong.

45But, here, there is no good reason to doubt the correctness of the decision.

46The Justice cited the proper governing principle – the best interests of the child. The Justice cited the correct factors to consider under section 24 of the Children’s Law Reform Act. The Court’s conclusion on each of those factors is reasonable. The Court’s balancing of all of the circumstances was done in a detailed and thoughtful manner.

47L.W. complains that the Justice made several errors in fact and in law. These are outlined at paragraph 44 of the mother’s factum.

48I agree with A.H. that none of these items provides good reason to doubt the correctness of the decision.

49Essentially, counsel for the mother boiled the submissions down to three main points. I will deal with them in turn.

50First, it is alleged that the Justice placed too little emphasis on maintaining the status quo. I disagree, for the reasons indicated above.

51Second, it is alleged that the Justice placed too much emphasis on what happened in Barrie. I disagree. The Court had every right to be disturbed at what happened there. The mother made a clandestine attempt to alienate, completely, the father (who had for many months enjoyed roughly equal time with the child) from his son’s life. And on what basis? Because of a stale and trifling assaultive incident and one recent alleged threat. Then, on a whim, L.W. did an about-face and consented to vacating the very relief that she had just prayed for as being best for the child.

52That is concerning. That makes one question the judgment of the mother. That makes one question her openness to fostering a healthy relationship between the child and his father.

53Third, it is alleged that the Justice misapprehended the reason(s) why L.W. went to Barrie to begin with. I disagree. The Justice did not misapprehend anything. He simply rejected the mother’s explanation, which the Court is entitled to do. The Justice found that the mother acted out of spite over the school dispute. That was a conclusion that was open to the Justice on the evidence before him on the Motions.

54As for the latter half of the second condition, having concluded that the Order under review does not conflict with any of the decisions relied upon by L.W. or with the state of the law generally, I am of the opinion that appellate review of the decision is not required.

55Looking at the decision of Justice Emery and the state of the law generally, there is nothing to settle. There is nothing in the law to develop. There is nothing in the administration of justice to advance. There is nothing that is of general public importance. There is nothing that is of broad significance. There is no issue that transcends the interests of the parties.

V. CONCLUSION

56For the aforementioned reasons, the mother’s Motion for leave to appeal the Temporary Order made by Emery J. is dismissed.

57Obviously, there is no need for me to address the request for a stay of that Order pending the appeal.

58A.H. shall have his costs of the Motion. Quantum will only be decided by me if the parties cannot agree. I will accept written submissions, if necessary, as follows. The father’s submissions, limited to two pages excluding attachments, shall be filed within twenty days of today. The mother’s submissions, with the same limitation, shall be filed within ten days thereafter. No reply.

Conlan J.