Jessica Barrow v. Brendan John Zielonka, 2017 ONSC 7432

COURT FILE NO.: FS-17-21891

DATE: 20171212

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jessica Barrow

Appellant/Applicant

– and –

Brendan John Zielonka

Respondent

Appearing on her own behalf

Martine Ordon, for the Respondent

HEARD: December 7, 2017

C. GILMORE, J.

RULING ON MOTION

Overview

[1] This appellant seeks leave to late file and serve her Notice of Appeal in relation to the judgment of Paulseth, J. dated July 26, 2017 (“the judgment”). The judgment was the result of the respondent’s Motion to Change the access provisions of Keast, J. dated January 17, 2012 (“the first order”). The matter relates solely to access by the respondent to the parties’ child Jade Maelynn Barrow born September 30, 2009 (“the child”).

[2] In brief, the judgment significantly expands the respondent’s access to the child including unsupervised and extended weekend access as well as a weeknight visit. The appellant is of the view that such a significant change in access is not in the child’s best interests and should be introduced over a lengthy period of time. She submits that the child does not like the extended access and that it is affecting her health and well-being.

[3] The respondent resists this motion and the appeal. He disputes the appellant’s allegations and submits that the child enjoys the additional time with her father. He submits that the entire case is a litany of interference by the mother with access and that the trial judge’s reasons make it clear that the appellant’s evidence at trial was not accepted and the court found that the respondent was committed to the child. Further, the appellant’s interference continues as evidenced by the affidavit material filed and her continuing actions such as repeatedly calling and texting the child during access visits.

[4] After hearing lengthy submissions on this motion on December 7, 2017 I dismissed the motion with reasons to follow. These are the reasons.

The Test

[5] Pursuant to Kefeli v. Centennial College of Applied Arts & Technology (2002), 23 C.P.C. (5th) 35 (Ont.C.A.) the factors that apply when determining whether to exercise discretion and extend the time for filing a Notice of Appeal are as follows:

a. Whether the appellant formed an intention to appeal within the relevant period;

b. The length of the delay and the explanation for the delay;

c. Any prejudice to the respondent;

d. The merits of the appeal;

e. Whether the “justice of the case” requires it.

Did the Appellant form an Intention to Appeal Within the Relevant Time?

[6] There is no real issue concerning this part of the test. It is clear that the appellant did not agree with the judgment and wanted to appeal. However, the matter does not end there. The other parts of the test must be considered in context.

The Length of the Delay and the Explanation for the Delay

[7] The appellant claims she attempted to serve the Notice of Appeal on Ms. Ordon’s office on August 25 at 4:30 p.m. but no one was there.

[8] The respondent does not accept this. His lawyer has a receptionist who is usually there until 5:00 p.m. If not, there is a note with a number to dial to reach someone inside the office. Further, the appellant was well aware of Ms. Ordon’s email address as there has been ongoing communication between Ms. Ordon and the appellant during periods when she was not represented by counsel. Finally, no note was left by the appellant at Ms. Ordon’s office, nor was there any follow up call or email requesting an arrangement for service. It should be noted as well that during the period of August, September and most of October, the appellant was represented by counsel.

[9] The respondent queries why the appellant waited until November 23, 2017 to return to his lawyer’s office with the Notice of Appeal.

[10] The appellant further submits that she delayed serving and filing her Notice of Appeal because she was concerned that the respondent would renege on his offer to settle costs. She wanted the costs issue resolved before she advanced her appeal.

[11] Some background is required to more fully understand the appellant’s position on this matter. The respondent deposed that the legal cost of his Motion to Change including the trial and many conferences was over $35,000. His Bill of Costs for the trial was $27,902.82. However, in consideration of his concern that a large costs order would ultimately impact on the child, he served an Offer to Settle costs for an all inclusive amount of $6941.33. The Offer was served on the appellant’s lawyer on August 15, 2017 and accepted on August 18, 2017.

[12] The appellant’s submission was that she wanted to delay filing her appeal until the costs order was taken out. The order was not issued until October 17, 2017. The appellant agreed to expunge some child support arrears ($2418) and suspend child support payments of $400 per month until August 2018 when the costs order would be set off in full.

Prejudice to the Respondent

[13] The respondent submits he will suffer serious prejudice if the appellant is allowed to serve and file her Notice of Appeal. Ever since the judgment was released in July 2017 the appellant has continued with her campaign of harassment and interference with access. There have been ongoing issues with implementing the July order.

[14] The appellant has made it clear she is unhappy with the judgment and does not feel it is in the child’s best interests. She disagrees with the expansion of access from seven hours a day on alternate Sundays to full 3-day alternate weekends with overnights.

[15] The respondent is concerned that if the appellant’s motion was granted, the appeal will take many more months to perfect and schedule. The access schedule ordered in the judgment required time to implement as the first unsupervised weekend access did not occur until September 22, 2017. The respondent is concerned about prejudice to the child in allowing the appeal and yet another potential change to the schedule.

The Merits of the Appeal

[16] The appellant does not raise any specific error of law or fact in the judgment nor any significant change in circumstances since the date of the judgment. Her concerns revolve solely around best interests and an access schedule which she views as too much, too fast.

[17] The respondent’s position is that the appellant’s appeal has no merit at all. Both parties were represented at trial and the judge concluded there had been a material change. The court reviewed the best interests test pursuant to s.24(1) of the Children’s Law Reform Act. The court made credibility findings and found that the appellant’s credibility was “poor” and that her false allegations had caused the child to be interviewed repeatedly. She also found that the false allegations had caused disruptions to the child’s relationship with her father.

Does the Justice of the Case Require a Dismissal of the Motion?

[18] The respondent submits that the justice of the case requires a dismissal of the motion. Given the unjustifiable delay in serving the Notice of Appeal, the lack of merit in the appeal, the lack of any reference to errors of law or fact in the judgment and the appellants continuing interference with access, she should not be permitted to take further steps.

[19] The appellant submits that the child does not like the current access. It is affecting her appetite and her overall well-being. She asks to come home from access and is discouraged from contacting her mother during access. The appeal should be allowed to move forward in order to ensure that the access schedule is implemented over a longer period of time and so the child may adapt to the schedule more gradually.

Analysis and Ruling

[20] While I do not find that the length of time for the delay in filing was excessive, the reasons for the delay lack substance for the following reasons:

a. The appellant allegedly made an attempt to serve her Notice of Appeal on the respondent’s counsel in August. If that were the case, why did she not follow up with a note or an email? Further, why was she serving it when she had counsel? And finally, why wait until November 23, 2017 to serve it? If she had concerns about the costs order, she was in a position to obtain legal advice from her counsel about filing an appeal and the implications of not doing so within the required time frame.

b. The submission that the appellant was waiting for the costs order to be issued does not, with respect, make sense. The offer to settle was accepted by her counsel on August 18, 2017. The matter should have ended there. Again, she had counsel with whom she could have consulted with respect to the ramifications of accepting the offer.

[21] This appeal is without merit even on a cursory review for the following reasons:

a. The appellant raises no specific error of fact or law. The judge properly made findings of fact and credibility, none of which favoured the appellant.

b. The appellant complains that the current order for access is not in the child’s best interests. However, she provides no fresh, objective or reliable evidence that this is the case. The complaints she makes are in the nature of the ones she has made since this matter began.

c. The trial judge properly made specific reference to s.24(1) of the CLRA and made several findings in the regard.

[22] The prejudice to the respondent in this case cannot be understated. Without going through the entire tortuous history of this matter, the trial judge summarized matters succinctly when she said “ her [the mother’s] allegations have been false and have caused the child to be interviewed repeatedly and caused disruptions to the child’s relationship with father.”

[23] There are concerns about the issues raised by the appellant given that she has been found to lack credibility as a witness and that her actions have interfered with the respondent’s relationship with the child. Given those significant findings by the trial judge, any further complaints by the appellant must be viewed with extreme caution.

[24] The trial judge found that the child enjoyed her visits with the respondent. The respondent’s affidavit material indicates that the access is going well other than the ongoing interference by the appellant.

[25] Allowing the appellant to extend the time for filing the appeal would create another round of circumstances in which the child is repeatedly interviewed. This is exactly what the trial judge criticized in her judgment. The access ordered by Paulseth, J. should be allowed to continue and the child should be free to develop a closer relationship with her father without the threat of more litigation.

[26] The justice of the case demands that the matter end here and that the appellant’s ongoing interference with access is not countenanced by this court.

[27] The test for an extension of time to appeal has not been met. The appellant’s appeal is dismissed.

Costs

[28] The respondent seeks full indemnity all inclusive-costs of $4587.80. He does so based on his success on this motion but also because of additional costs incurred by the appellant’s refusal to grant an adjournment from December 5th to December 7th. Only after the respondent appeared in court on December 5th did the appellant agree to the adjournment.

[29] The respondent submits that the appellant has acted in bad faith. She has delayed filing her appeal for four months without a valid reason.

[30] The respondent gave the appellant a $25,000 discount on costs after trial. The respondent is concerned that his good nature is simply fuelling the appellant’s actions.

[31] The appellant submits that the litigation related to the Motion to Change cost her $17,000 in legal fees. She is already suffering a hardship having to forgo child support in order to cover her costs obligations from the trial.

[32] I agree that the respondent’s good nature should no longer be permitted fuel the appellant’s actions. I have already found that the appeal is without merit. This motion is also without merit. The appellant shall pay the costs of this motion in the amount of $4000 payable forthwith. This may be set off against ongoing child support payments if the parties agree.

C. Gilmore, J.

Released: December 12, 2017