Citation: Vandenberg v. Desjardine, 2016 ONSC 1968

COURT FILE NO.: 25-2012D (Goderich)

DATE: March 21, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Vanessa Renee Vandenberg, Applicant (Appellant in Appeal)

AND:

Simon Desjardine, Respondent (Respondent in Appeal)

BEFORE: Justice D. R. Aston

COUNSEL: Elli M. Cohen, for the applicant (appellant in appeal)

William R. Clayton, for the respondent (respondent in appeal)

HEARD: March 2, 2016 (Goderich)

ENDORSEMENT

[1] Ms. Vandenberg’s motion seeks to stay the January 20, 2016 temporary order of Donohue, J. pending her appeal of that order. The order granted Mr. Desjardine supervised access to the parties’ two children, James age 4 and Lexi age 3. When it comes right down to it, the mother does not challenge the father’s right to supervised access so much as the provision that his mother, rather than a supervised access centre in Sarnia, provide the supervision.

[2] The legal test for a stay pending appeal is well established. The moving party must demonstrate that: a) there is a “serious question” the impugned order is wrong; b) “irreparable harm” to the child will occur if the stay is not granted; and, c) the “balance of convenience” favours granting a stay. See Mudry v. Danisch, 2014 ONSC 4335 (Div. Crt.) at paras. 165 and 167 and Lefebvre v. Lefebvre, 2002 Carswell Ont. 4325 (C.A.) at para. 6.

[3] Those cases were appeals from final orders, appeals as of right. This case is an appeal from an interlocutory order, raising the threshold issue of whether the same test applies, without modification. Counsel have been unable to direct the court to any authority on that point.

[4] Rule 38(1)(b) of the Family Law Rules provides that rr. 61, 62 and 63 of the Rules of Civil Procedure apply to appeals from orders made under the Family Law Rules. In this case, Ms. Vandenberg must obtain leave to appeal the interlocutory order of Donohue J. Her motion for leave to appeal will be scheduled and heard as a motion in writing within 36 days of service of her factum and transcript from the January 20 hearing. That step has now been taken. Her motion for leave to appeal will be heard in the next four to six weeks.

[5] At this moment there is no appeal pending, only a proposed appeal for which leave has not yet been granted. I cannot assume leave will be granted. Indeed, leave to appeal an interlocutory order for custody or access is rarely granted. On the other hand, the court has a discretion to stay or suspend a temporary order outside the context of any appeal. For example, if changed circumstances put a child at risk the court has the authority and obligation to stay, suspend or vary the temporary order.

[6] In this case, both sides have filed fresh affidavits to update the court on how the supervised access has transpired since the January 20, 2016 order.

[7] I will begin by addressing the motion for a stay in the context of the proposed appeal, then in the context of the fresh evidence.

[8] First, a brief background. The parents separated more than a year ago on January 2, 2015. The mother has set out, in considerable detail, particulars of extensive, physical, verbal and emotional abuse alleged to have occurred against herself and also alleged instances of the father causing physical harm to their son James. The respondent was criminally charged. It was only this past October that he was able to get his bail conditions modified to allow him to have access to the children, and only with a supervisor designated by the court in the family proceeding.

[9] On January 20, 2016, Donohue J. heard three motions. The father brought motions to strike portions of the mother’s affidavit material and for access to the children supervised by his mother. Ms. Vandenberg brought a motion for no access or alternatively for supervised access at the supervised access centre in Sarnia pending completion of a s. 30 assessment. The motions judge had an extensive record, facta and books of authority. He heard lengthy oral submissions and briefly reserved his decision before granting the father the relief he was asking for.

[10] The grounds for the proposed appeal are that the motions judge erred in striking parts of the mother’s supporting material, that he gave insufficient reasons, misapprehended the facts and seemed to decide the main issue in advance of the completion of the oral submissions.

[11] When an appeal is taken from a final order, an appeal as of right, the first part of the legal test for a stay is whether the appeal raises a “serious question”. The jurisprudence suggests the bar is not set very high on this branch of the test. The appellant need only show that the appeal is not frivolous or vexatious. The underlying rationale for this is that it obviates the need to delve very deeply into the merits of the appeal, leaving that task to the appeal court itself.

[12] Counsel for Ms. Vandenberg submits that on her motion to stay, the court should refrain from delving into the likelihood that leave to appeal will be granted. He submits the appeal is not frivolous or vexatious and the test has been met. Counsel for Mr. Desjardine, on the other hand, submits that on the motion to stay the court cannot ignore r. 62.02(4)(b). To obtain leave to appeal, Ms. Vandenberg must not only demonstrate there is good reason to doubt the correctness of Donohue J.’s order but also that “the proposed appeal involves matters of such importance that leave to appeal should be granted”. The jurisprudence is clear in establishing that the phrase “matters of such importance” refers to importance extending beyond the interests of the litigants themselves. The impugned order must transcend the interests of the parties and raise a question of public importance or be relevant to the development of the law or the administration of justice in general.

[13] It is apparent from the brief reasons and from the comments of the motions judge at the January 20 hearing that he was aware of the need to make an order reflecting his view of the best interests of the children. By necessary inference he found that supervision by the paternal grandmother would adequately protect the two children from risk of harm and that isolation of the children from their father should not continue. Temporary orders in family cases are often a determination of complex issues on a limited record and often based on untested or unchallenged evidence of questionable admissibility. In that sense, they may be more prone to error. However, the Rules of Procedure and case law make it abundantly clear that appeals from such orders are to be discouraged in favour of a process that encourages the parties to move issues toward a trial, with conferences along the way to explore settlement of the dispute. The appeal process is expensive and delays the final resolution of issues while fueling the acrimony between the parents.

[14] In my view, the proposed appellant in circumstances such as this must show that there is at least a reasonable prospect leave to appeal will be granted. It seems quite doubtful to me that leave will be granted on the facts of this case, but I will not dismiss the present motion on that basis alone. I prefer to approach the issue through the lens of the potential harm to the children, combining the second and third parts of the test noted above. It is presumptively in the best interests of the child to restore and repair the parent/child relationship if the child’s safety and security can be protected. The motions judge found that access should start sooner rather than later after a hiatus of about a year for children who are still quite young. The access has begun, so the question of whether the children should have some form of “professional counselling” before it started (as had been proposed by the mother January 20, 2016) has become moot. I pause to observe that her conduct when arriving at the first visit with a police escort and having taken to the children on a tour of the police station en route was not particularly child focused. The mother has failed to establish that the paternal grandmother’s supervision of access leaves the children at risk of harm. Though she tries to put a spin on the statement by the grandmother to the effect that her son “deserves a fresh start”, the evidence falls far short of convincing me that the motions judge erred in his determination that supervision by the paternal grandmother would protect the children from harm.

[15] In my view, the second and third parts of the test for a stay pending appeal have not been established.

[16] This leads to consideration of the fresh evidence of how the access has worked out since it was ordered. The mother has presented an affidavit which attaches letters from James’ school principal, “a retired O.P.P. officer” Cathy Jones and notes from the childcare centre the children attend. These attachments are most likely inadmissible as evidence but even when they are taken into account, they are of little value in proving that the access ordered on January 20 is causing harm to the children. The motions judge anticipated some transitional difficulties as the children re-establish contact with their father after a year in which they did not spend time with him. The motions judge delayed the start of the s. 30 assessment for that very reason.

[17] The test for staying an access order based on new circumstances demands much more than the evidence presented on this motion. The fresh evidence in this case indicates that access is not without its difficulties but there is nothing to suggest it is causing significant harm to the children while the family works its way through a transitional period.

[18] The motion to stay or vary the access provision in the order of January 20, 2016 is dismissed.

[19] If counsel are unable to agree on costs, brief written submissions may be submitted within the next 20 days.

“Justice D. R. Aston”

Justice D. R. Aston

Date: March 21, 2016