COURT FILE NO.: 16-550
DATE: June 18, 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Robinson v Delorme
BETWEEN: Trina Robinson, Applicant and Matthew Delorme, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Duncan Crosby for the Applicant/Respondent on Motion
John Allen for the Respondent/Applicant on Motion
HEARD: May 11, 2018
ENDORSEMENT
[1] This is a motion for a stay of enforcement pending an appeal brought by Matthew Delorme.
[2] The order appealed from was made by March J. of the Ontario Court of Justice on April 10, 2018 wherein he granted the request of Trina Robinson for a temporary order changing primary parenting responsibility for the parties’ daughter, N.D., now 7 years old, from Mr. Delorme to Ms. Robinson pending trial.
[3] By way of background, Mr. Delorme was granted custody pursuant to a child protection proceeding in October, 2015 due to Ms. Robinson’s substance abuse difficulties.
[4] In August 2016 Ms. Robinson filed a motion to change wherein she initially sought access but later amended the claim to include a request for custody.
[5] A trial to address the parenting arrangements for N.D. is scheduled to proceed in the Ontario Court of Justice for three days commencing July 3rd.
[6] Mr. Delorme’s position is as follows:
a) the motion judge should not have refused his request for an adjournment;
b) the motion judge did not have jurisdiction to make an interim order in these circumstances;
c) the status quo pending trial ought to have been maintained.
[7] Ms. Robinson’s position is as follows:
a) Mr. Delorme was made aware on March 19, 2018 that Ms. Robinson would be bringing a motion for interim custody on April 9, 2018;
b) Mr. Delorme had ample time to retain counsel;
c) the change in custody was justified because N.D. was missing too much school and had poor oral hygiene.
[8] On the issue of the requested adjournment, Mr. Delorme says the motion materials were served on April 5, 2018 for use on a motion returnable April 9th which would constitute short service. Ms. Robinson contests this submission and in addition to referring to her affidavit of service that showed that the documents were sent for service upon Mr. Delorme on March 27th, she attached some Purolator documentation to her affidavit in response to Mr. Delormes’s affidavit that disclosed an envelope was picked up in Renfrew on March 28th and delivered in Arnprior the next day “at door”. It appears from the record that the motion judge accepted the submission that the motion was not served late. The motion judge noted that Mr. Delorme had a pattern of seeking to delay the proceeding, that he was aware on March 19th that a motion would be made, that Mr. Delorme retained counsel who prepared a notice of change of representation on March 23rd but which was not served until April 6th and that the newly-retained counsel did not attend court on the return date for the motion.
[9] The motion judge exercised his discretion not to grant Mr. Delorme an adjournment and that decision is entitled to deference by this court.
[10] On the jurisdictional issue, I note that Mr. Allen has raised a question respecting the power of the court to grant temporary relief under the Divorce Act on a motion to change a final order. That issue does not arise here, however, because the parties were not married and the final order previously made was not made under the authority of the Divorce Act. Also, rule 15(28) specifically provides that a temporary order can be granted on a motion to change a final order. The jurisdictional argument has no merit in the circumstances of this case.
[11] On the issue of the importance of preserving the status quo pending trial, I agree that consistency and stability are important considerations. At bottom, however, the issue is to determine what is in the child’s best interests. The motion judge identified several factors that led him to conclude that a temporary change in parenting arrangements was warranted.
[12] The issue is not whether this court would necessarily have come to the same conclusions as the motion judge, the issue is whether there is a proper basis for this court to stay the execution of the order of March J. pending trial.
[13] My understanding is that N.D. has been living with her mother since the order was made by March J. in April, 2018. In my view it is not in N.D.’s best interests for her to return to her father’s care for the next few weeks pending trial. The motion judge exercised his discretion to refuse Mr. Delorme’s request for an adjournment and found that there was evidence that supported the view of the motion judge that a temporary change in the parenting arrangements was in the child’s best interests. Compliance with the temporary order of March J. will not cause irreparable harm and the balance of convenience favours leaving N.D. in her mother’s care at least temporarily.
[14] The motion for a stay of execution is dismissed. On the issue of legal costs, counsel for Ms. Robinson has submitted a bill of costs for $1,060.51 on a partial indemnity basis.
[15] Either party may make further submissions on the issue of legal costs within 10 days.
James, J.
DATE: June 18, 2018
COURT FILE NO.: 16-550
DATE: June 18, 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Robinson v Delorme
BETWEEN: Trina Robinson, Applicant and Matthew Delorme, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Duncan Crosby for the Applicant/Respondent on Motion
John Allen for the Respondent/Applicant on Motion
ENDORSEMENT
James, J.
DATE: June 18, 2018