COURT FILE AND PARTIES

COURT FILE NO.: 700/11 (Guelph)

DATE: 2015 12 07

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: JENNIFER MAY LLEWELLYN, Applicant

AND:

DAVID JAMES LLEWELLYN, Respondent

BEFORE: Emery J.

COUNSEL: Michelle M. Dwyer, Counsel for the Applicant
David James Llewellyn, in person

HEARD: In writing

ENDORSEMENT

Introduction

[1] The applicant mother brings this motion for leave to appeal an interim order made by Justice Lemon on August 26, 2015, for reasons released on August 31, 2015. Justice Lemon’s order dated August 26, 2015 provides that: "Ms. Llewellyn shall maintain the parties' daughter's residence within the attendance boundaries of her current school".

[2] The motion heard by Justice Lemon for interim relief was brought by the respondent father because the applicant mother had moved from Guelph to Bolton, Ontario on or about June 10, 2015. Their daughter, J., would attend school during the 2015/16 school year in either Bolton or Guelph, subject to the interim order Justice Lemon was asked to make.

[3] The interim order was made in the context of a motion to change a final order made by Justice Herold dated June 10, 2014. That final order was made on consent, and based on the language of minutes of settlement filed by the parties. The respondent father has brought a motion to change the final order made by Justice Herold in order to maintain J.’s primary residence within the attendance boundaries of her current school in Guelph. The motion to change states that if the applicant mother is unwilling or unable to maintain that primary residence, the respondent father seeks to have custody of J. changed to him. These orders would then change the access and support provisions of the final order made by Justice Herold on June 10, 2014.

Relevant background

[4] The applicant mother and the respondent father have one child, their daughter J., born on November 27, 2003. That means that J. has just turned 12 years old.

[5] The applicant mother and the respondent father entered into minutes of settlement on June 10, 2014 to settle all outstanding issues between them on a final basis. Justice Herold made an order dated June 10, 2014 based on those minutes of settlement. Pursuant to paragraph 1 of Justice Herold’s order, the applicant mother and the respondent father would have joint custody of J.

[6] Paragraph 2 of Justice Herold’s order provides that in the event of a disagreement, the applicant mother shall have final decision making authority with respect to her health, care and education.

[7] The terms of paragraph 29 of Justice Herold’s order were also of importance on the motion before Justice Lemon. Paragraph 29 reads as follows:

29. The applicant, Jennifer May Llewellyn, and the respondent, David James Llewellyn, shall provide the other party with at least sixty (60) days written notice of a planned change of residence. If the change of residence exceeds seventy-five (75) kilometres from the City of Guelph, the moving party shall require the other’s written consent or court order.

[8] The respondent father relocated his residence from Guelph to Cambridge, Ontario shortly after the final order was made.

[9] The respondent father had filed evidence on the motion that he only learned of the plans of the applicant mother to move from the home where she had been residing with her new husband and J. in Guelph when he saw a “house for sale” sign in the yard of the applicant mother’s property.

[10] There was evidence before Justice Lemon that the applicant mother advised the respondent father on or about June 10, 2015, that she was moving with her husband and J. from Guelph to Bolton, Ontario. According to her evidence, the applicant’s plan is to reside with her parents until she and her husband purchase a home in the same neighbourhood as J.’s maternal grandparents.

[11] The respondent father served the applicant mother with the motion to change materials on June 25, 2015. The motion to change materials filed by the respondent father clearly outline his objections to the relocation plans of the applicant mother.

[12] The motion of the respondent father was heard on August 25, 2015 on an urgent basis. On that motion, the respondent father requested the following orders:

(a) an interim order that the child, J., continue to attend Ken Danby Public School in Guelph during the 2015/16 school year;

(b) an interim order that the respondent father become the primary resident parent of the child. If the applicant mother was not willing or able to maintain primary residence within the bounds of Ken Danby Public School boundaries, the respondent father would move within the school’s boundaries;

(c) an order that a representative of the Children’s Lawyer be appointed to hear and speak for the best interests of the child, J., on matters involving schooling and residency.

[13] After hearing the motion for interim relief on August 25, 2015, Justice Lemon reserved his decision for further thought. On August 26, 2015, Justice Lemon made the following endorsement:

[1] For written reasons to follow, Ms. Llewellyn shall maintain the parties’ daughter’s residence within the attendance boundaries of her current school.

[14] Justice Lemon released a further endorsement on August 31, 2015 giving reasons for his endorsement made on August 26, 2015.

[15] The applicant mother argues that Justice Lemon requires her to maintain J.’s residence within the attendance boundaries of her current school in Guelph, Ontario, notwithstanding that he had evidence before him on August 26, 2015 that the applicant mother had already sold her home in Guelph.

[16] The applicant mother argues that Justice Lemon’s decision in effect overturns the final order made by Justice Herold in 2012.

Test for Leave to Appeal

[17] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[18] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).

[19] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[20] While it is patently obvious, I consider it significant that the order made by Justice Lemon is an interim order. The order was made to address the question of where J. would be enrolled to attend school for the 2015/16 school year. It is not an order that was intended to decide or predetermine the outcome of the motion to change as a final order.

[21] I make the following observations in order to place Justice Lemon’s interim order in perspective for the purpose of deciding whether or not leave to appeal should be granted. First, Justice Lemon notes that with only conflicting affidavits before him, he did not have sufficient reliable evidence to be sure of the best interests of the child. Justice Lemon correctly noted that a court ought not to change the situation of a child on an interim basis before a complete record can be provided. Second, Justice Lemon concluded that although he should consider the wishes of the child, there were insufficient materials before him to do so. Finally, Justice Lemon observed that while he is satisfied an order should go requesting that the Office of the Children’s Lawyer represent J.’s interests, it will take weeks, if not months, for that to occur.

[22] I am of the view that Justice Lemon’s statement in paragraph 18 of his reasons that “the parties agree that J. does not want to move but they do not agree on why she does not want to move” had a bearing on his decision.

[23] The distance between Guelph and the proposed residence of the applicant mother and her husband in Bolton is either 66 km or 93 km, depending on the route taken. In any event, Justice Lemon observed that the proposed change in location is approximately one hour away from Guelph.

[24] Justice Lemon made his interim order having regard to the whole of Justice Herold’s final order, and not just on the one paragraph relied upon by the applicant mother on her motion for leave. Justice Lemon notes at paragraph 15 and 16 that:

[15] It is clear that although Ms. Llewellyn may have complied strictly with the terms of the present order, she has failed to live up to the spirit of the general provisions regarding parenting. She has arguably moved within the 75 km limit. She has given the appropriate notice. She has authority to make the final decisions on education, which would, no doubt, include the school that the child attends.

[16] However, she does not deny that Mr. Llewellyn first found out about the proposed move when he saw a for sale sign on her home. She has not respected Mr. Llewellyn’s time with his daughter; she has effectively scheduled activities that will affect his time with J. Ms. Llewellyn has not brought an application to vary the present order. Accordingly, as it stands, she must ensure that J. is available for pick up and drop off in Guelph shortly after school. If J. is living and attending school an hour away, that will be impossible.

[25] It would appear Justice Lemon’s interim order is directed to the enforcement of the schedule of residence (regular parenting schedule) contained in Justice Herold’s final order. Those provisions have not been made part of the respondent father’s motion to change and the applicant mother has not brought an application to vary those terms in the final order. As Justice Lemon stated, “as it stands, she [the applicant mother] must ensure that J. is available for pickup and drop off in Guelph shortly after school. If J. is living and attending school an hour away, that will be impossible.”

[26] I take Justice Lemon’s conclusion to mean that the applicant mother cannot exercise one part of the final order that would extinguish or frustrate the parenting regime established by another term of the same order. To allow that to occur would be to ignore the access rights given to the respondent father. How the exercise of the applicant mother’s mobility rights impact on the parenting and access provisions of Justice Herold’s order over the long term, and what changes to the parenting regime, if any, would be in the best interests of the child remain open questions.

[27] In my view, Justice Lemon’s interim order is consistent with the final order made by Justice Herold. I do not see the correctness of his decision to be open to very serious debate that would warrant review by a higher level of judicial authority: Brownhall v. Canada (Ministry of National Defence), (2006) 2006 7505 (ON SC), 80 O.R. (3d) 91, (S.C.J.) I therefore conclude there is no reason to doubt the correctness of Justice Lemon’s order.

[28] Even if I had found that the correctness of the interim order was open to very serious debate, I would not consider that the proposed appeal involves matters of such importance that leave to appeal should be granted. The issue about where J. should be enrolled to attend school for the 2015/16 school year is particular to J. and her parents. The question does not go beyond the interests of the immediate parties.

[29] The only reference to the second part of the test by the applicant mother is found in paragraph 61 of her factum, where she submits that the issues raised on the motion “are of significant importance in light of the court’s obligation to properly consider and weigh evidence, especially evidence relating to the best interests of the child.” For the reasons given above, I find that Justice Lemon properly addressed those issues for which he had evidence, and made no decision on those issues where he found the evidence with respect to them insufficient or wanting. The proposed appeal of the interim order Justice Lemon did make does not involve a question of general or public importance relevant to the development of the law or the administration of justice.

[30] The motion of the applicant mother for leave to appeal is therefore dismissed.

[31] The respondent father requests an additional $700 in costs to respond to this motion. I would ask that the applicant mother file written submissions consisting of no more than three pages setting out her position on costs by December 15, 2015, and that the respondent father file his similarly limited submissions in reply, if any, by December 18, 2015. All submissions may be made by fax to my judicial assistant, Mr. Christopher Charles at 905-456-4734, in Brampton.

EMERY J.

Date: December 7, 2015.

COURT FILE NO.: 700/11 (Guelph)

DATE: 2015 12 07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JENNIFER MAY LLEWELLYN

and

DAVID JAMES LLEWELLYN

BEFORE: EMERY J.

COUNSEL: Michelle M. Dwyer, for the Applicant

David James Llewellyn, in person

ENDORSEMENT

EMERY J

DATE: December 7, 2015