CITATION: 2015 ONSC 3549

COURT FILE NO.: FS-14-19562

DATE: 20150602

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Margaret Chinyere Ojukwu, Applicant

AND:

Pius Ojukwu, Respondent

BEFORE: Kiteley J.

COUNSEL: Ruby Umoren, for the Applicant

Robert A. Fernandes, for the Respondent

HEARD: May 12, 2015

ENDORSEMENT

Background

[1] The parties married in January 24, 2004 in Nigeria. The Applicant and their first child (a boy born August 2005) arrived in Canada in November 2005. The parties have two children born in Canada, a girl born February 2007 and a boy born December 2008. The parties separated on February 2, 2014 when the Applicant and the children left the matrimonial home.

[2] The Applicant wife started proceedings in the Ontario Court of Justice and on March 27, 2014, the parties entered into minutes of settlement in the Ontario Court of Justice in which they agreed on an interim interim without prejudice basis that the father would have access to the children on alternating weekends from Friday at 3:00 p.m. (pick up from school) to Monday morning (return to school); and every Thursday from 3:00 p.m. (pick up from school) to Friday morning (return to school); and on such additional times as the parties agreed.

[3] It appears that the Applicant wife withdrew her application in the Ontario Court of Justice although there is also an order by Justice Murray (O.C.J.) dated May 7, 2014 transferring the O.C.J. proceedings to this court. The Application was issued in this court and in August 2014 the Respondent filed an Answer.

[4] The parties attended conferences on September 15, 2014 and January 30, 2015 but I can locate a case conference endorsement only for January 30, 2015 at which time the settlement conference was scheduled for May 11, 2015.

[5] The Respondent husband brought a motion returnable Tuesday March 24, 2015 for an order requiring the Applicant wife to provide disclosure. The motion and affidavit were served on March 6, 2015.

[6] The Applicant wife brought a motion returnable Tuesday March 24, 2015 in which she asked for the following:

A temporary order granting the Applicant sole custody of the children;

A temporary order that the Respondent exercise access on alternate weekends Friday 6:00 p.m. to Sunday 6:00 p.m. With drop off and pick up at the gate of Humber College Etobicoke;

A temporary order requiring the Respondent to pay table child support;

An order requiring the Respondent to maintain the Applicant and the children as irrevocable beneficiaries of his life insurance policy;

An order restraining the Respondent from molesting, annoying or harassing the Applicant and that he shall not contact her other than for the purpose of arranging access to the children and shall not contact any member of the Applicant’s family for any reason.

[7] The affidavit in support of the notice of motion was sworn March 17, 2015.

[8] With the assistance of Mr. Fernandes, the Respondent husband prepared, served and filed an affidavit sworn March 20, 2015 in opposition to the Applicant’s motion. According to the affidavit, he filed it at 11:27 a.m. on Friday March 20, 2015; in other words, in sufficient time that it should have been put into the court file for the motion returnable March 24.

[9] The motion and cross-motion were before Paisley J. on Tuesday March 24, 2015. The affidavit sworn March 20, 2015 was not provided to Paisley J. The Respondent did not have counsel.

[10] After hearing submissions, Paisley J. made the following endorsement:

The Applicant moves for custody of the three children of the marriage age 9, 8, and 6, child support and a restraining order. Two of the children have special needs, they have been diagnosed with autism. The parties were married in 2004 and separated in 2014. The Applicant resides in a residence in an apartment building the whereabouts of which she does not wish to disclose to the Respondent.

The Applicant states that she has been subjected to physical and emotional violence by the Respondent during the marriage, including slaps to the face, and choking. A doctor’s note dated March 7, 2014 is attached to her affidavit, which notes inter alia a contusion on the neck. The Applicant states that the children have been affected by being exposed to the Respondent’s disparagement. The Applicant states that she is in fear for her life when left alone with the Respondent. She states that the Respondent exercises access to the children only as it pleases him, and that the children’s academic performance is of concern as their homework is not done while they are in care of the Respondent. She states that the Respondent disrupts her work to satisfy his demands and uses offensive language on the phone in the presence of the children, and that a restraining order is required. The Respondent denies the allegations of abuse, objects to the attached Doctor’s note on the grounds of hearsay, states that he is aware of the location of the Applicant’s residence and has not harassed her, and states that the Applicant has attended at his residence for access. The Respondent objects to a restraining order on the grounds that it is not justified, and may cause difficulty with his employment.

I am satisfied that there is sufficient evidence to grant the requested restraining order. The Respondent is prohibited from contact or communication with the Applicant except through counsel, and is to keep at least 100 metres from the Applicant at all times other than as required to attend at court, court ordered mediation, or while attending at the supervised access center in accordance with the requirements of the Center.

I request the assistance of the Office of the Children’s Lawyer. A copy of this endorsement is to be faxed to the Children’s Aid Society of Toronto.

On a temporary basis, the Applicant shall have custody of the children, access by the Respondent father shall be restricted to supervised access at a supervised access center one day per week, for up to one hour per visit.

I find that the Respondent’s income for child support based on his 2014 income inclusive of rent paid to him, was $76697. Child support guideline table support on a temporary basis is $1475 per month for the three children, payable to the Applicant, commencing from the date of this motion, March 3, 2015. The issue of arrears of child support may be determined on an interim motion, the parties’ proportionate share of the children’s monthly section 7 expenses may also be determined on the interim motion. There is no claim for spousal support.

The Respondent moves for an order of disclosure. The Applicant states that the requested disclosure has already been produced. The record before me is not sufficient to determine that issue. The disclosure requested is relevant, and should be produced if it has not been to date. A pension valuation will be required. A standard disclosure order is attached. Disclosure shall be completed within 30 days.

The parties are to schedule a settlement conference as soon as disclosure is complete and the interim motions for access, custody and support have been heard and determined.

[11] The formal order had not been signed and entered at the time I heard submissions on May 12. The restraining order was signed and entered and was made pursuant to s. 46 of the Family Law Act and, on a temporary basis, restrained the Respondent from contacting or communicating directly or indirectly with the Applicant and all of the children except through counsel to arrange access to the children and restrained the Respondent from being within 100 metres of the Applicant wife except at court, for court mediation or at the supervised access center.

[12] The Respondent filed a form 14B motion dated April 16, 2015 in which he sought the following:

1. Stay the order of motion, held on March 24, 2015

2. Because I am in the process of filing an appeal

3. I have applied for the release of transcription

4. Transcript was not released to the transcriptionist

5. A motion has been filed for May 12, 2015

6. For leave to appeal

7. And release the transcript to the transcriptionist appointed.

[13] In her endorsement dated April 30, 2015, McWatt J. dismissed the motion and noted that “this is not a 14B motion. This matter should be taken to whatever court has jurisdiction over the appeal”.

Motion heard May 12, 2015

[14] In the motion dated March 29, 2015 which I heard on May 12, 2015 (originally returnable April 14, 2015) the Respondent husband sought the following relief:

Pursuant to Rules 62.02(1), 62.02(1.1), 62.02(4)(a) and 62.02(4)(b) of the Rules of Civil Procedure. . . and pursuant to subsections 19(1)(b) of the Courts of Justice Act. . . and also pursuant to rules 1(6), 1(7), 2(2), 2(3)(a), 2(4), 38(1)(a) and 38(1)(b) of the FLR:

(a) An order granting the Father leave to appeal the following interim orders made by the Honourable Mister Justice V. Paisley on March 24, 2015:

(i) The order restraining the Father from having any contact or communication with the Applicant/mother, Margaret Chinyere Ojukwu (hereinafter, the “Mother”);

(ii) The order requiring the Father to keep at least 100 meters from the Mother at all times;

(iii) The order granting the Mother custody of the children . . .

(iv) The order restraining the Father from having any contact or communication with the children;

(v) The order requiring the Father to keep at least 100 meters from the children at all times;

(vi) The order restricting the Father’s access to the children to supervised access only;

(vii) The order requiring the Father to pay periodic child support to the Mother in the amount of $1,475.00 per month, effective March 3, 2015; and

(viii) The order granting the mother leave to bring a further motion against the Father for a determination of the issue of child support arrears;

(b) Pursuant to Rules 1(6), 38(35)(a) and 38(35)(b) of the FLR:

(i) An order staying Paisley J.’s interim order(s) of March 24, 2015;

(c) Pursuant to subsections 16(2), 16(4), 16(5), 16(6), 16(8), 16(9), and 16(10) of the Divorce Act. . .

(i) An interim order granting the parties joint custody of the children

(ii) An interim order restoring the Father’s access to comport with the parties agreement dated March 27, 2014; and

(iii) An interim order restraining both parties from making any disparaging comments or remarks about the other, in the presence or within earshot of the children;

(d) pursuant to section 9 of the Federal Child Support Guidelines . . .

(i) An interim order requiring both parties to pay periodic child support to each other, in such amounts as are commensurate with their respective annual incomes and the Support Tables promulgated under the Guidelines, starting March 1, 2015, and payable on the first day of each and every month thereafter;

(e) Pursuant to rules 24(1), 24(10), 24(11) and 24(12) of the FLR:

(i) Costs of this motion payable on a full recovery basis, together with disbursements and HST; and

(f) Such further and other relief as this Honourable Court deems necessary to do justice in the circumstances of this case.

[15] The Respondent father did not challenge the order made by Paisley J. referring the matter to the Office of Children’s Lawyer.

[16] Following the submissions, I made an endorsement in which I noted that the motion for leave had to be made to the Divisional Court. I noted that I have jurisdiction to grant a stay of some or all parts of the order pending appeal and I reserved on that aspect of the hearing. I noted that the transcript remained outstanding although the Respondent husband had made efforts to obtain it and that the delay in this court had been caused by transcript issues beyond his control. On consent, I established a timetable for the delivery of materials in the leave application that included counsel ensuring that the order of Paisley J. and of this endorsement be signed and entered forthwith.

Motion to stay pending appeal

[17] Pursuant to rule 38(35) of the Family Law Rules, this court may stay a temporary or final order on any conditions that the court considers appropriate. The test for granting a stay is the following: has the appellant established that there is a serious question that the judgment is wrong, that irreparable harm will be caused if a stay is not granted, and that the balance of convenience favours granting a stay. The reasons for decision in Mudry v Danisch (2014 ONSC 4335) in which the Divisional Court granted leave to appeal and a stay pending the appeal contain an analysis of the application of the test which is relevant to this motion.

[18] I will deal first with the request to stay the order for supervised access at the supervised access centre for one hour weekly. The Applicant wife did not ask for such an order. That raises a serious question that the order, which was made without any notice to the Respondent husband and without giving him an opportunity to respond, is wrong. The issue of fairness of the process, particularly when an order of such impact was made, is a serious question in the appeal. The Respondent husband has met the threshold of establishing that that question raised in this appeal is not frivolous or vexatious.

[19] I agree that counsel for the Respondent husband has established that irreparable harm will be caused to the children if a stay is not granted. The status quo at the time of the hearing before Paisley J. on March 24, 2015 was that the children were with their father on alternating weekends from Friday at 3:00 p.m. to Monday morning; and every Thursday from 3:00 p.m. to Friday morning. The effect of the order dated March 24, 2015 was that the children were deprived of the opportunity to see their father for extensive periods of time in a natural parental setting and instead were thrust into the artificial environment of a supervised access centre once each week for up to one hour without a finding that there had been a material change in circumstances that necessitated such a drastic change to the status quo. It is telling that the Applicant wife had not asked that all of such parenting time be eliminated; she had asked that an order be made that he have access on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. I am satisfied that irreparable harm will be caused to the children if their relationship is so profoundly changed pending the appeal.

[20] In addressing the balance of convenience issue in a family law case, the court must balance the harm that would be suffered by each party and by the children. Two of these children have autism and therefor have special needs. The balance of convenience clearly favors the continuation of the relationship between and among the father and these children. To the extent that Paisley J. made an order which the Applicant had not sought, there is no prejudice to her if the order is stayed. I see no issue of convenience with respect to the Applicant wife that is relevant to this motion to stay.

[21] It is appropriate to order a stay of that part of the order. However, that does not mean that the status quo pursuant to the interim minutes of settlement ought to automatically resume. Without accepting her evidence in its entirety, I do acknowledge that the Applicant wife was concerned that the status quo was negatively impacting the children. I am also mindful that the school year is close to finishing and a resumption of the status quo at this point might not be in the best interests of the children. As indicated below, while I have made an order staying that aspect of the March 24 order, I will replace it with the alternate weekends as requested in the notice of motion of the Applicant wife.

[22] As indicated above, counsel had not had the order of Paisley J. signed and entered. If it had been available, I would make an order staying a specific paragraph number. Absent having a signed and entered order, I can refer only to the endorsement. However, once the order of Paisley J. is signed and entered, the relevant paragraph number in the order arising from this endorsement should be inserted.

[23] As indicated above, the Respondent husband challenges other aspects of the order made by Paisley J. The Applicant wife had not asked for a s. 46 restraining order against her, let alone against the children; she had asked only for an order that he be restrained from molesting, annoying or harassing her and that he not contact her other than to arrange access. The lack of notice to the Respondent husband and the lack of an opportunity to respond indicates that he has raised a serious issue to be tried. However, the questions of irreparable harm and balance of convenience are less compelling. Orders such as those are formally signed and entered and sent to CPIC. Staying such an order pending an appeal would create logistical challenges. Indeed, I am not confident that the CPIC system would adequately distinguish between an order that has been made and an order that has been stayed pending an appeal. In any event, the Respondent husband has not established irreparable harm if that order is not stayed.

[24] The Respondent husband also will seek leave to appeal the orders with respect to temporary custody and child support. I am not persuaded that the Respondent husband has met all of the tests in order to obtain a stay of those aspects of the order.

Costs

[25] As indicated above, in the motion before me, the Respondent husband asked for leave to appeal. That aspect of the motion had to be heard in the Divisional Court. Counsel agreed to the timetable referred to above in order that the leave application would proceed in a timely way. Counsel for the Applicant wife asked for costs of $1500 in respect of that part of the motion.

[26] In my endorsement dated May 12, 2015, I left costs of the motion until after I released the endorsement on the stay motion. It is the case that the Applicant wife was successful in taking the position that the motion for leave had been brought in the wrong court. The Respondent husband has been successful in one important aspect of his motion but I have not granted the motion in other respects. Counsel had to attend for purposes of the hearing of the motion to stay. Success has been divided. In this challenging case, neither party should pay or receive costs of this motion.

ORDER TO GO AS FOLLOWS:

[27] The following portion of the endorsement of Paisley J. dated March 24, 2015 is stayed pending the motion for leave to appeal, and if granted, pending the appeal:

On a temporary basis, . . . access by the Respondent father shall be restricted to supervised access at a supervised access center one day per week, for up to one hour per visit.

[28] On an interim basis and pending the outcome of the motion for leave to appeal, and if granted, pending the appeal, the Respondent father shall have access to the children Chimechetam Pascal Ojukwu born August 9, 2005, Nneoma Tracy Ojukwu born February 26, 2007 and Ugochukwu Victor Ojukwu born December 24, 2008 on alternate weekends commencing Friday June 5, 2015 at 6:00 p.m. until Sunday June 7, 2015 at 6:00 p.m. with drop off and pick up at the gate of Humber College Etobicoke.

[29] On an interim basis and pending the outcome of the motion for leave to appeal, and if granted, pending the appeal, the parties may enter into such consent order(s) to accommodate the summer school recess or to accommodate additional access.

[30] Counsel may forward the approved draft order with respect to this endorsement or other consent order arising from paragraph 29 to my attention and in my absence in July 2015, to the attention of Horkins J.

[31] Neither party shall recover costs of this motion.

Kiteley J.

Date: June 2, 2015