Court File and Parties

Court File No.: FS-16-0014 Date: 2016-09-21 Ontario Superior Court of Justice

Between: Adaline Garita Tejado, Appellant – and – James Trevor Miksis, Respondent

Counsel: James E. Weppler, for the Appellant Darren Berlinguette, for the Respondent

Heard: in Gore Bay: September 9, 2016

Reasons for Judgment

Gauthier, j.

The Motion

[1] The relief sought in the Notice of Motion, dated August 29, 2016, is the following:

1. A stay of the order of August 5, 2016, save and except the clause granting the applicant Adaline Garita Tejado interim custody of Naomi Miksis born July 4, 2008, and Jana Marie Miksis born April 9, 2011;
2. Leave to appeal the Order of August 5, 2016; and
3. Such other order as counsel may advise and this Honourable Court permit.

[2] In the course of his submissions, counsel for the appellant requested that there simply be a stay of the first provision in the order being appealed from, that is the Order of the Ontario Court of Justice made on August 5, 2016. The first paragraph provides that:

The children are ordered returned.

The Facts

[3] The appellant and the respondent began cohabiting in December 2007. They are not married. They have two children, Naomi (8 years old) and Jana (5 years old). The family residence is a home owned by the respondent in the town of Webbwood, which they have occupied since 2009.

[4] The appellant, who originates from the Philippines, came to Canada as a caregiver, sponsored by the respondent as a common-law partner. According to her evidence she has "permanent residence status."

[5] The appellant and the respondent have been living separate and apart since April 20, 2016. According to the appellant's evidence, she was assaulted by the respondent and after having discussed her situation with police she left the family residence on the advice of police. Police had been called by the appellant's family doctor after the appellant disclosed her domestic difficulties to her physician.

[6] According to the evidence of the appellant, which is not contradicted, she sought refuge at the nearest women's shelter to Webbwood being Haven House in Mindemoya, in the District of Manitoulin. She and the two girls have been residing there since April 2016. The girls were enrolled and have attended Central Manitoulin Public School since that time and, according to the evidence, appear to have adjusted to the new environment and are doing well. They have just begun the 2016/2017 academic year at that school.

[7] The appellant has secured employment at a local grocery store in Mindemoya and is doing well in that regard.

[8] The respondent was charged with having assaulted the appellant and is subject to an interim release order that prohibits him from having contact with the appellant, save and except to arrange for access to the girls through a third party. He continues to occupy the residence in Webbwood, the title to which is in his name only. Although the respondent indicates that the appellant prevented him from having access to the girls for a period of time following the separation, it appears that access is being exercised and the access schedule was arrived at on the consent of the parties. The respondent exercises alternate weekend access.

[9] The appellant had begun family law proceedings in the Ontario Court of Justice at Gore Bay. The respondent brought a motion within that proceeding for, among other things, an order that the girls be returned to Webbwood and an order transferring the matter to the Ontario Court of Justice at Espanola, which is the nearest court to Webbwood which was the "habitual residence" of Naomi and Jana in accordance with the provisions of the Children's Law Reform Act. That motion was heard by the Ontario Court on August 5, 2016. The court characterized the appellant's taking the children to Mindemoya as an "improper move", a unilateral removal of the children from their ordinary residence and familiar surroundings. The court granted the respondent's motion and made the following order.

The Order

1. The children are ordered returned.
2. The mother shall have interim interim custody.
3. The matter will be traversed to the Ontario Court of Justice in Espanola on a date to be returned by the parties.
4. The father shall be granted interim interim access to the children every second weekend from Thursday 5:00 p.m. to Monday morning 8:00 a.m. together with any other time agreed to by the parties.

[10] The appellant has appealed the August 5, 2016, by way of notice of appeal dated August 11, 2016. The grounds for the appeal are as follows:

1. The Trial Judge did not fully and properly consider the reason for why the mother was required to leave the matrimonial home and take the children with her, namely a domestic assault upon her by her common-law partner, James Miksis;
2. The Trial Judge did not consider that the mother is an immigrant to Canada and sought the nearest women’s shelter as a refuge for herself and her children in Mindemoya, District of Manitoulin;
3. The Trial Judge appeared to blame the mother for unilaterally removing the children from their ordinary residence without any consideration of the absolute necessity of her to do so given the charge of Domestic Assault laid by the Ontario Provincial Police against her common-law partner, James Miksis;
4. The Trial Judge did not consider the fact that there was a no contact order as a result of the recognizance of James Miksis which did not include a clause to arrange access through a third party such that any attempt to arrange access would have created a breach of his recognizance for the Respondent;
5. The Trial Judge did not consider that the Respondent father has controlled in every sense the life of the Appellant mother including all finances and that she had no independent source of income or support and was forced to seek the assistance of a women’s shelter;
6. The Trial Judge did not consider the fact that the Appellant mother has been a stay-at-home mother caring for her daughters while it was only the Respondent father, Mr. Miksis, who was employed and who had the means to travel, including ownership of a vehicle.
7. The Trial Judge did not consider that in changing the jurisdiction there is no public transportation from Mindemoya to Espanola and that only the Respondent father has an automobile and a driver’s license for such travel which has enabled him to attend Court in Gore Bay, District of Manitoulin;
8. The Trial Judge came to the wrong conclusion in finding that it was an improper move given that it was the only option open to the Appellant mother, a victim of domestic abuse, for her own safety and that of her daughters;
9. The Trial Judge in ordering the children returned has made an impossible Order given that the Respondent father Mr. Miksis lives in the matrimonial home and is subject to a condition to have no direct or indirect contact with the Appellant mother Adaline Tehado and at the same time granted interim interim custody to the Appellant mother Adeline Tejado who cannot return to the matrimonial home where the Respondent father lives. The Order is fundamentally contradictory and cannot be carried out given both the criminal charges and conditions in recognizance and the fundamental safety of the Appellant mother.

Appellant’s Position

[11] Counsel for the appellant submitted that the Ontario Court of Justice order is impossible to follow. The only residence the appellant had in Webbwood was the family residence, which is owned and occupied by the respondent. She cannot return to that residence because of concerns for her safety and by virtue of the bail conditions imposed on the respondent that he have no contact with the appellant. The appellant does not have the financial means to secure other accommodation in Webbwood.

[12] The terms of the order are contradictory. Although the appellant was given temporary custody, the children were ordered to be returned to Webbwood, a term which the appellant cannot comply with.

[13] As indicated, the appellant does not have the financial means to secure her own accommodation, at this time, either in Mindemoya or in Webbwood. She and the girls therefore continue to reside at Haven House. The respondent has provided zero financial assistance to the appellant, either in the form of child support or otherwise.

[14] The appellant has established a network of support for herself and her daughters in Mindemoya. This was not possible while she resided with the respondent in Webbwood as he was controlling and kept the appellant dependent upon him.

[15] The girls have adjusted well to the move and are doing well in school and otherwise. They are having regular contact with their father.

[16] It is in the best interests of the children that they be allowed to remain in the care and custody of the appellant in Mindemoya, pending the hearing of the appeal of the August 5, 2016, Order.

Respondent's Position

[17] The respondent argues that the appeal is about jurisdiction only. Webbwood and the District of Sudbury is the habitual residence of the children, which habitual residence remains unchanged by virtue of the provisions of s. 22 of the Children's Law Reform Act.

[18] Rule 5 of the Family Law Rules provides that an application for custody is to be started in the municipality where a child or children ordinarily reside, and that the clerk of the court is to refuse to accept an application for custody or access if it is brought in a municipality other than that in which the child or children are ordinarily resident.

[19] The proceedings commenced by the appellant in Gore Bay were fatally defective and that is why the court on August 5, 2016, ordered that the case be transferred to Espanola, the closest court location to Webbwood, and that the children be returned to their habitual residence. The order was perfectly proper. To grant a stay of the order would be to set up a new status quo.

[20] Counsel suggested that on this motion to stay, I am not to embark upon a consideration of the best interests of the children.

The Test on the Granting of a Stay

[21] The three criteria for the granting of a stay of an order pending appeal are:

i. the appeal raises a serious question; ii. the person seeking the stay will suffer irreparable harm if the stay is not granted; and iii. on a balance of convenience, the person seeking the stay would suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted.

[2] The three components of the test are interrelated. The overriding question is whether granting the stay is in the interests of justice. See Warren Woods Land Corp. v. 1636891 Ontario Inc. (2012), 211 A.C.W. S. (3d) 499, 2012 ONCA 12.

Analysis

[3] The test to be applied is akin to the considerations on an injunction application.

[4] In addressing the first criteria, I note that the threshold is relatively low. In this case, the question(s) raised on the appeal are serious questions. They involve the jurisdiction of a court, as well as the living circumstances of two young children. The appeal also raises the very real issue of the conflict between the August 5, 2016, order and the provisions of the respondent's bail conditions, as well as the inability of the appellant to secure accommodation for herself and the children in Webbwood, resulting in her inability to actually comply with the order in question.

[5] I have no difficulty in concluding that the questions raised on the appeal are serious.

[6] In considering the second criteria, the best interests of the children must be addressed. Naomi and Jana have been in Mindemoya for some four and a half months. They completed their 2015/2016 academic year at Central Manitoulin Public School, and have begun the current academic year at that institution. The evidence, which is uncontradicted, is that they are doing well in their current environment. They are having regular and consistent contact with their father, on consent.

[7] There is no evidence to contradict the appellant's position that she left the family residence as a result of domestic violence on the advice of police and for her own safety. Nor is it contradicted that the appellant availed herself of the opportunities provided by the nearest women's shelter she could find.

[8] Neither party provided me with any of the materials that would have been before the Ontario Court on August 5, 2016. There is no evidence before me to indicate that custody of the children is a serious issue between the parties. The appellant was awarded temporary custody on August 5, 2016, and access went on consent. In this context, it would not be in the children's best interests to take them away from Mindemoya and their current school and have them return to the family residence without their mother who cannot, for reasons already touched upon, go back to the home. Further, even if I did make such an order it could, depending on the outcome of the appeal, be temporary only and would result in unnecessary upheaval of the children.

[9] I would comment further that the children and the appellant herself are benefiting from the present support network provided in Mindemoya.

[10] The appellant has satisfied the second criteria; likewise, the third requirement. On balance, greater harm would be suffered by the appellant and the children if the stay was not granted, than will be suffered by the respondent on the granting of the stay. The respondent is exercising regular and consistent access. There is no harm to him in having the children continue to be in the actual care of the custodial parent in Mindemoya, as opposed to Webbwood.

[11] Therefore, the appellant's request for a stay of the first paragraph of the Ontario Court of Justice Order made on August 5, 2016, that is that the children be returned to Webbwood, is granted.

[12] In the event that the parties cannot agree on costs, they may make written submissions to me, to be no more than three pages, and delivered to the Gore Bay courthouse, within 20 days of this ruling, failing which there will be no order as to costs.

The Honourable Madam Justice Louise L. Gauthier

Released: September 21, 2016