Court File and Parties
COURT FILE NO.: FS-16-21082 DATE: 20161017 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: PEDRO ALVES Appellant – and – JULIA QUINTANA LONDRAN Respondent
Counsel: Self-represented and acting in person Pamila Bhardwaj for the Respondent
HEARD: October 13, 2016
Endorsement
DIAMOND J.:
Overview
[1] The appellant and the respondent were parties to a proceeding commenced in the Ontario Court of Justice. The trial of that proceeding proceeded before Mr. Justice Spence on May 9 - 12, 2016 and July 18 - 20, 2016.
[2] In a written decision released on July 28, 2016, and reported at Alves v. Londran, 2016 ONCJ 466, Justice Spence granted the respondent sole custody of the parties’ only child Miguel Alejandro Quintana Alves (“Miguel”), with the appellant having access to Miguel on alternate weekends and every Wednesday after school until Thursday mornings.
[3] By Notice of Appeal dated August 29, 2016, the appellant appealed the decision of Justice Spence. As Miguel was in the appellant’s sole custody for approximately 2.5 years leading up to the trial, the appellant alleges that Justice Spence erred by, inter alia, “reversing the status quo and granting the respondent decision making power on all important issues.”
[4] There are 54 grounds of appeal listed in the Notice of Appeal. As I understood the appellant’s submissions, all of the transcripts from the trial proceedings are available, but he is currently not in a financial position to pay for them all (to date, he has obtained and filed transcripts from three of the seven trial days). The appeal has thus not yet been perfected, and there is no return date for the hearing.
[5] In the interim, the appellant brings this motion seeking a stay of the decision of Justice Spence pending his (yet to be scheduled) appeal. That motion was argued before me on October 13, 2016, and I took my decision under reserve with reasons to follow.
[6] These are those reasons.
Stay of an Order Pending Appeal
[7] As held by Justice Gilmore in Leeming v. Leeming, 2016 ONSC 1835, a parent seeking a stay in a custody or access appeal must establish the following:
a) there is a serious question that the order under appeal is wrong or at least open to serious debate;
b) there will be irreparable harm to the child if the stay is not granted; and
c) the balance of convenience favours the granting of a stay.
[8] As succinctly stated by the Nova Scotia Court of Appeal in N.S. v. R.S., 2016 NSCA 55, when considering a motion for a stay “a child’s best interest must always be an overriding consideration with significant deference to the trial judge.” The Court in N.S. referred to its earlier decision in Reeves v. Reeves, 2010 NSCA 6 with approval:
“I summarize the following principles from these authorities. The stay must have an arguable issue for her appeal. But, when a child’s custody, access or welfare is at issue, the consideration of irreparable harm and balance of convenience distills into an analysis of whether the stay’s issuance or denial would better serve, or cause less harm to, the child’s interest. The determination of the child’s interests is a delicate fact driven balance at the core of the rationale for appellate deference. So the judge on a stay application shows considerable deference to the findings of the trial judge. Of course, evidence of relevant events after the trial was not before the trial judge, and may affect the analysis. The child’s need for stability generally means that there should be special and persuasive circumstances to justify a stay that would alter the status quo.”
Serious Issue to be Tried
[9] It is trite to state that the threshold to show a serious or arguable issue is not a high one, nor is it dependent upon a detailed assessment of the likelihood of success on appeal. Simply put, I must be satisfied that the appeal is neither frivolous or vexatious.
[10] Despite the urgings of counsel for the respondent, I am prepared to find that the pending appeal does raise a serious issue. As found by Justice Spence, the dispute between the parties was (and remains) a high conflict case. As required by section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, Justice Spence carried out a detailed assessment of the evidence in order to make the necessary decisions pertaining to both custody and access of Miguel. Justice Spence found that some of the statutory considerations favoured the appellant’s position, while other statutory considerations were neutral. What apparently tipped the scales in favour of the respondent was Justice Spence’s finding that (a) it was the respondent who was better able to recognize and facilitate Miguel’s needs, and (b) unlike the appellant, the respondent understood and sought to ensure that both parents were present and actively involved in Miguel’s life.
[11] As previously stated, the appellant is pursuing numerous grounds of appeal. Some of those grounds raise alleged procedural errors, which the appellant contends precluded him from tendering key evidence. Other grounds are more specific, such as an alleged failure on the part of Justice Spence to recognize a conflict of interest on the part of an employee of the respondent’s counsel.
[12] As held by the Court in N.S., while it is impossible at this early stage of the appeal to know whether any of these grounds will ultimately cause the appellate judge to intervene and/or overturn, those grounds listed by the appellant are nevertheless sufficient to overcome his initial burden.
[13] Accordingly, I find that the appellant has satisfied the first branch of the test for a stay.
Irreparable Harm
[14] After performing an extensive review of the evidence, Justice Spence held that it was the respondent who was more focused upon Miguel’s needs as she was the one who “acted as a concerned parent would act.” Justice Spence found the appellant to be dismissive of Miguel’s apparent needs, having downplayed their significance on occasion.
[15] Miguel primarily resided with the appellant for approximately 2.5 years prior to trial. He has now been under the primary care and control of the respondent for nearly three months. No doubt this is likely a significant adjustment for Miguel who has already experienced the breakdown of his parents’ marriage and relationship at an early age.
[16] Granting a stay of Justice Spence’s decision would result in the reinstatement of the status quo before the trial, i.e. placing Miguel under the primary care and residence of the appellant. This would be the second “uprooting” in a matter of months. In my view, such an order would only be appropriate if I was satisfied that (a) there was a significant chance that the appeal would be successful, and (b) there was clear evidence that Miguel was suffering or not thriving as a result of the change in the previous status quo.
[17] While I have found the presence of a serious issue to be tried, I am not convinced that there is a significant chance the appeal will be successful. I am obviously not in a position to carry out a detailed assessment of the merits of the appellant’s arguments, but from what I have reviewed in the record before me, Justice Spence appears to have exercised his discretion upon the correct legal principles. Justice Spence found the appellant to be dismissive of the respondent and “wanting to cut her out of Miguel’s life”. There was evidence in the record before him to make such a finding.
[18] More importantly, there is a complete lack of evidence filed on this motion to support a finding that Miguel is suffering in any way as a result of Justice Spence’s decision. In his submissions, the appellant argued that Miguel has recently been (i) losing weight, (ii) rebellious at school and (iii) not desirous of returning to the respondent once it is time for Miguel to leave the appellant’s residence. The appellant has sworn and filed three affidavits (two dated September 15, 2016 and another dated October 7, 2016) in support of his motion. The appellant’s only evidence dealing with Miguel’s post-trial health and experience is as follows:
“14. Prior to the Honourable Justice decision of July 28, 2016 the parties had agreed on mutual consent for all access orders be suspended for the month of August, 2016 and access to the Mother be as one week on and one week off.
- Therefore the child is only been living with the respondent Mother since August 29, 2016 in which is been only 16 days.”
[19] The balance of the appellant’s evidence relates to the 2014 – 2016 years, ie. the “status quo” period when Miguel primarily resided with the appellant. I have no evidence before me to conclude that Justice Spence’s decision is having any adverse effects upon Miguel. In the absence of any such evidence, in my view it is not in Miguel’s best interest to reinstate the status quo, especially when the appeal may very well end up being dismissed resulting in Miguel being potentially uprooted again.
[20] I find that the refusal of the stay will not cause Miguel irreparable harm, while the granting of the stay may very well do so.
[21] Accordingly, the appellant has not satisfied the second branch of the test for a stay, and his motion is dismissed.
Balance of Convenience
[22] For completeness of the analysis, I shall move on to the third branch of the requisite test.
[23] To summarize, I adopt and rely upon the following comments of Justice Gilmore in Leeman:
“This stage of the analysis requires a balancing to the harm of the parties and to the children. Not much need be said on this point that has not already been said save that the new access schedule has now been in effect for several weeks and changing it yet again by implementing a stay would be inconvenient at best, and at worst, have a further negative effect on the children as it will undermine its stability of their schedule.”
[24] Accordingly, I find that the balance of convenience favours the refusal of a stay of the order of Justice Spence.
[25] The appellant’s motion is therefore dismissed.
[26] If the appellant is still intent upon pursuing his appeal of Justice Spence’s decision, he may contact the Family Trial Scheduling Office to obtain the first long motion date offered by the Court and available to the parties. The appellant shall perfect his appeal by no later than 45 days before the scheduled hearing date.
Costs
[27] At the conclusion of the hearing, I ask the parties for their costs submissions. Counsel for the respondent requested that, in the event the motion was dismissed, costs be awarded to the respondent on a full indemnity basis in the all-inclusive amount of $4,500.00 (being approximately 15 hours at an hourly rate of $300.00).
[28] The appellant submitted that in the event his motion was dismissed, he should still be awarded costs of the motion due to, inter alia, alleged bad faith on the part of counsel for the respondent. This alleged conduct forms part of the numerous grounds of appeal set out in his Notice of Appeal, and I am not in any position to assess the merits of those allegations on this motion.
[29] In my view, there is no reason why costs should not follow the event. That said, I do not believe that there is any reason to depart from the normal rule that costs be awarded on a partial indemnity scale. Accordingly, I award the respondent her costs of this motion fixed on a partial indemnity scale in the all-inclusive amount of $3,000.00 and payable forthwith.
Diamond J. Released: October 17, 2016