COURT FILE NO.: FS-5949/16 DATE: 2016-08-30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Claudette Macleod and Christopher Dave Effenberger Appellants – and – Ella Lorraine Rae and Francis Walter Sweet Respondents

Counsel: Michael J. Doupe, for the Appellants Emilie Chamaillard, for the Respondents Lisa Barazzutti, for the Office of the Children’s Lawyer

HEARD in Sudbury: August 26, 2016

DECISION ON MOTION TO STAY

R.D. GORDON, R.S.J.

Overview

1By way of judgment dated August 17, 2016, Ella Rae and Francis Sweet (hereinafter referred to as the “Respondents”) were awarded custody of Kallum David Alexander Rae-Langlois (born September 25, 2009) and Frankie-J Laraine Rae-Langlois (born June 6, 2012) referred to herein as the “children”.

2The Respondents in the custody dispute, Claudette MacLeod and Christopher Dave Effenberger (hereinafter referred to as the “Appellants”), are appealing the judgment and seek a stay of its provisions pending disposition of the appeal.

Background Facts

3The children’s biological mother was Jessica Rae. She passed away on or about July 24, 2013.

4The children’s biological father is Francois Langlois. He undertook the care of the children following their mother’s death until late December of 2013 or early January of 2014 when he delivered them to the Appellants who are his step-parents. Mr. Langlois did not participate significantly in the trial. He is not in a position to care for the children.

5Ella Rae is Jessica Rae’s mother (the maternal grandmother of the children). Francis Sweet is her common-law spouse. They normally live together in British Columbia. Not long after the children were left with the Appellants they expressed interest in caring for the children. They began their application for custody in April of 2014. To maintain as close a relationship with the children as possible and to pursue her claim for custody, Ms. Rae moved temporarily to Kirkland Lake in July of 2014. She has had the children in her care regularly since then pursuant to various interim orders of the court. The trial was conducted on the basis that if she and Mr. Sweet were successful in obtaining custody they would be moving the children to British Columbia.

6Although there were no interim orders awarding custody of the children, it would appear that their principal residence has been with the Appellants from the time the children’s father delivered them into their care.

7The trial in the Ontario Court of Justice was heard over three days between February 5 and May 13, 2016. Evidence in chief from all witnesses was given by affidavit. Cross-examination of witnesses, other that the parties, was conducted out of court and transcripts filed as trial evidence. The parties were cross-examined viva voce at trial.

8The trial judge, in a thorough 16 page decision released on August 17, 2016, found in favour of Ms. Rae and Mr. Sweet and ordered the children into their care effective August 26, 2016, recognizing that the children would be moved to British Columbia. He made provision for extended summer access and other holidays with the Appellants.

9The Appellants have undertaken to file a notice of appeal. They have not yet been able to do so, given the very short timeframe between the release of the judgment and the anticipated date for the children to be delivered into the Respondents’ care. Their efforts have been focused on retaining counsel and having this motion brought.

Applicable Law

10Section 74 of the Children’s Law Reform Act R.S.O. 1990 c. C.12, provides that an order for custody of or access to a child remains effective even if an appeal is taken from the order unless the court that made the order or the court to which the appeal is taken orders otherwise. It follows that the Appellants bear the onus of showing why a stay is warranted.

11The test for a stay requires the satisfaction of three elements: (1) there be a serious question that the trial judgment is wrong; (2) the children will suffer irreparable harm if a stay is not granted; and (3) the balance of convenience favours a stay. The overriding consideration reflected in this three-part test is the best interests of the children and the court must be satisfied that it is in the best interests of the children to order a stay. [see Lefebvre v. Lefebvre, 2002 CarswellOnt 4325 (C.A.)]

12The requirement of a “serious question” represents a fairly low threshold requiring only that the appeal not be frivolous or vexatious.

13With respect to the interaction of the three elements of the test, I adopt the following comments of Justice M.A. Sanderson sitting as a judge of the Ontario Divisional Court in Mudry v. Danisch, 2014 ONSC 4335:

In custody and access cases, irreparable harm and the balance of convenience are inextricably linked and “distils into an analysis of whether the stay’s issuance or denial would better serve, or cause less harm to, the child’s interest”. G.(A.) v. B. (J.), 2008 ABCA 61, 2008 CarswellAlta 191 (C.A.) at para. 12 where Justice Watson noted that “one has to look at the three parts of the test holistically, connecting irreparable harm with balance of convenience when little children are involved.” Reeves v. Reeves, 2010 CarswellNS 39 (C.A.) at para. 21.

Analysis

Serious Issue on Appeal

14Given the short period of time between the issuance of the trial judgment and argument of this motion it was not possible for counsel to provide a detailed analysis of the various proposed grounds of appeal. As a result, I hesitate to comment on the strength of the various grounds alleged except to say that they are not, for the most part, frivolous or vexatious.

15That said, my preliminary review of the matter would lead me to conclude that the Appellants’ submission that the trial judge improperly applied the principles outlined in Gordon v. Goertz, [1996] 2 S.C.R. 27 may be difficult to establish. Similarly, their contention that the trial judge’s failure to recuse himself was improper and that his knowledge of the children’s father may have affected his decision strikes me as bordering on frivolous or vexatious.

16However, I do note the following aspects of the trial judge’s decision that warrant appellate review and constitute a serious question on appeal:

• His acceptance of Francois Langlois’ (the children’s father) support of the Respondents as custodial parents without his having filed any supporting materials, without having testified, and without having the basis for his position challenged through cross-examination.
• The manner and extent of his consideration of the time the children had lived in a stable home environment with the Appellants, particularly in light of the age of the children.
• The extent to which he critically examined the stability of the common law relationship between the Respondents.
• The rationale of the trial judge in arriving at the conclusion he did. Although he clearly identified the factors requiring consideration under the Children’s Law Reform Act and provided significant analysis of each such factor, his conclusion does not readily reveal why he preferred the Respondents over the Appellants.

17I wish to reiterate that I am not commenting upon the strength of the appeal. I am simply identifying grounds of appeal that are neither frivolous nor vexatious and would therefore constitute serious issues on appeal. I also reiterate that I do so without the benefit of a full record.

Irreparable Harm and Balance of Convenience

18These children have had significant turmoil in their young lives.

19If a stay is not ordered the children will relocate to British Columbia within days. In the event the Appellants are then successful in their appeal, the children would be relocated once again to Ontario. No one has suggested that this would be in their best interests. Indeed I would think this might be potentially quite harmful to them.

20If a stay is ordered the children would remain in the care of the Appellants for the time being. In the event the Appellants are not successful in their appeal the children’s relocation to British Columbia would simply be delayed by the time is takes to have the appeal heard.

21This is not a situation where the children were removed from the care of the Appellants because they were not able to adequately parent the children. The trial judge found, among other things, that the Appellants love the children and have strong emotional ties to them and that the children have a loving relationship and a bond with the Appellants. He seems to have been satisfied that the children had a stable home environment with the Appellants. He found that the Appellants have met the children’s medical needs and are able and willing to ensure that those needs continue to be met. Although the trial judge found that the Appellants had at times been unnecessarily restrictive in their handling of access to the Respondents and other extended family, there has been no suggestion that they have failed to comply with any court ordered access. He found that they have the ability to effectively parent the children.

22There is little harm that could come to the children from remaining in the care of the Appellants pending completion of the appeal.

Conclusion

23There is a serious issue on appeal. When I consider the potential harm to the children of having the order stand pending appeal versus the virtual absence of harm in having the order stayed pending appeal it becomes obvious that the issuance of a stay is appropriate.

24That said, it is necessary that the appeal process move quickly so that permanent custodial arrangements are determined for the children and they have the stability and security that comes with it. To that end, I am making the following orders:

1. The Appellants shall deliver their Notice of Appeal not later than September 15, 2016.
2. The Appellants shall deliver a transcript of all oral evidence from the trial not later than October 15, 2016.
3. The Appellants shall deliver their Appeal Record and Factum not later than November 7, 2016.
4. The Respondents shall deliver their Respondents’ Appeal Record, if any, and their factums not later than November 30, 2016.
5. The trial coordinator shall contact counsel forthwith to arrange a date for hearing of the appeal and shall make every effort to schedule a date in the month of December, 2016.
6. If the Appellants fail to comply with these timelines or such other timelines as may be ordered by the court, the Respondents may file a motion form (Form 14B) to have the appeal dismissed for delay.

25At the conclusion of the hearing of this motion, I ordered that the children be delivered into the care of the Respondents on August 26, 2016, pending further order. It is hereby ordered that the children be returned to the care of the Appellants on September 2, 2016, and that the Appellants and Respondents thereafter share the care of the children on the same terms as the most recent order of the Ontario Court of Justice pertaining to the school year. Either the Appellants or Respondents may apply to this court to have the terms of care for the children determined anew pending completion of the appeal.

26If the parties are unable to agree on costs they may make written submissions to me, not to exceed three pages plus attachments each, within 45 days.

R.D. Gordon, R.S.J.