Court File and Parties
COURT FILE NO.: FS-18-6543 DATE: 20190104
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Taryn Grieder Applicant (Appellant on Appeal)
– and –
Oleh Kovalchuk Respondent (Respondent on Appeal)
Counsel: Jessica Gagné, Counsel for the Applicant/Appellant Dumo Siziba, Counsel for the Respondent
HEARD: January 3, 2019
BEFORE: C. Gilmore, J.
OVERVIEW
[1] This is the Appellant’s motion to stay the orders of O’Connell, J. dated October 15 and November 15, 2018.
[2] The Appellant has filed a Notice of Appeal. On December 6, 2018 the parties agreed, on consent, that the Appellant would have until December 15, 2018 to file her Notice of Appeal and that the hearing in relation to both of O’Connell, J.’s orders would be heard at the same time.
[3] The parties also agreed that the outstanding orders of O’Connell, J. would be stayed temporarily pending the return of this motion. Access by the Respondent to the child L.G. between December 6, 2018 and January 3, 2019 was agreed to take place on Sundays from 12:30 p.m. to 6:30 p.m. The Appellant agreed to provide all transportation for access.
[4] As the access schedule has now expired, the Appellant seeks to stay the access orders made by O’Connell, J. She offers an alternative pending the hearing of the appeal which will likely be within the next three to four months.
[5] Specifically, the Applicant offers a three step approach to access pending appeal:
a. For two out of every three weekends up to March 31, 2019, the Respondent shall have access to L.G. for six hours on one day each weekend, commencing the weekend of January 5, 2019.
b. Commencing March 30, 2019, the Respondent shall have access to L.G. for six hours on both weekend days on alternate weekends.
c. The first overnight access visit would take place on May 25, 2019. Access would commence at 12:00 p.m. on Saturday and continue until 4:00 p.m. on Sunday on alternate weekends.
[6] The Appellant has also offered to provide all the transportation for access. The Appellant resides in Peterborough and the Respondent in Toronto.
[7] The Respondent does not agree with this schedule. He submits that he is entitled to the access set out in O’Connell’s J.’s order of October 15, 2018, as well as the police enforcement of that order as per the November 15, 2018 order. He does not consent to a stay of either order and submits that, in any event, the Appellant has not met the test for a stay.
LITIGATION BACKGROUND
[8] These parties have been in litigation for over five years in relation to their now six year old son, L.G., born November 7, 2012.
[9] A summary of the salient parts of the outstanding Ontario Court of Justice orders is as follows:
a. Order of Katarynych, J., dated December 18, 2013, ordering sole final custody of L.G. to the Appellant. Respondent to pay child support of $250 per month.
b. Order of Katarynych, J. dated, July 3, 2014, ordering the Respondent to pay child support of $228 per month. Respondent to have two hours per week of access.
c. Order of O’Connell, J. dated August 18, 2017. The Appellant brought a Motion to Change as she intended to move to the U.S. After filing significant court material and after lengthy negotiations, the Respondent consented to an order permitting the Appellant to relocate to the U.S. and required her to arrange for the child to travel to Canada once every three months for access. More specifically, the Respondent was to have two four hour visits on American Thanksgiving in 2017, two six hour visits between December 2017 and March 2018, two six to eight hour visits between March and June 2018, two eight hour visits between June and September 2018 and one overnight access weekend between September and December 2018. An important provision of this order is as follows:
- The parties shall negotiate further conditions regarding the introduction of overnight access and future summer access. If the Respondent cancels access visits or if access is not progressing accordingly, the Applicant may bring a motion to stop overnight access.
d. Order of O’Connell, J. dated October 15, 2018. In September 2018, the parties each brought motions. The Appellant sought to eliminate the overnight access and replace it with two separate eight hour visits during the period of September to December 2018. The Respondent sought an order for liberal and generous access, including alternate overnight weekend access and holiday access.
O’Connell, J. released her decision in relation to these motions on October 15, 2018. The court ordered that the Respondent have weekend overnight access each weekend from Saturday at noon to Sunday at 4:00 p.m. for four consecutive weekends. Thereafter, the Respondent was to have access on alternate weekends from Friday at 4:00 p.m. to Sunday at 6:00 p.m.
The court declined to order police enforcement of the access order as requested by the Respondent.
e. Order of O’Connell, J. dated November 15, 2018. The Appellant refused to comply with the terms of the October 15, 2018 order. The Respondent brought a motion on November 15, 2018 to request police enforcement of the October 15, 2018 order. The court granted his request.
[10] The Appellant has appealed both the October 15, 2018 and the November 15, 2018 orders. She seeks a stay pending appeal and provides a proposed access schedule as set out above.
[11] The Respondent submits that the Appellant has mislead the court and that this case is really about alienation. The Appellant agrees to an expansion of access and then refuses to comply. Specifically, she refuses to allow access to L.G. by the Respondent except when she determines he is “psychologically” ready. The Appellant’s refusal to comply with court orders has led to her being charged with the Criminal Code offence of failing to comply with a court order. That proceeding remains outstanding.
[12] The Respondent submits that weekend overnight access should commence immediately as contemplated by the October 15, 2018 order and that the Appellant has not met the test for a stay of that order.
THE TEST FOR A STAY
[13] The legal test for a stay pending appeal is somewhat different in family law cases as there is always an overarching focus on whether such an order would be in the child or children’s best interests.
[14] The jurisprudence is clear that the test for staying a custody or access order pending appeal is as follows:
a. There is an arguable appeal;
b. Irreparable harm would result from the failure to grant a stay.
c. The balance of convenience favours a stay.[^1]
[15] In family law cases, courts have held that irreparable harm and the balance of convenience are inextricably linked as the court must consider the effect of the issuance or denial of a stay on the child’s best interests.[^2]
Issue One – Is There an Arguable Appeal?
[16] The Appellant submits that she was denied procedural fairness with respect to both the September and November 2018 motions. Specifically, she argues as follows:
a. She was short served on both motions and did not have complete responding material before the court. O’Connell, J. did not address this in either of her rulings.
b. The Ontario Court of Justice is a statutory court and does not have the jurisdiction to order police enforcement in a jurisdiction in which the child does not reside.
c. The police enforcement order has no expiry date. Section 36(7) of the Children’s Law Reform Act requires that such orders have an expiry date no later than six months after the date the order was made. The order of November 15, 2018 has no such expiry date.
[17] The Respondent’s position is that there is no serious issue to be tried. The Appellant consented to proceeding with the access issue on September 15, 2018. She was represented by counsel and did not request an adjournment. In any event, the September 15, 2018 order only established an access schedule that was anticipated in the August 2017 order.
[18] The court denied the Respondent’s request for police enforcement at the September 15, 2018 motion. Only after the Appellant’s blatant breach of the October 2018 order did the court order police enforcement even in the face of the Appellant being short served.
Ruling on Issue One
[19] I do not find that there is a serious issue to be tried in this appeal. The jurisdiction issues related to the police enforcement order are of minimal importance at this stage as the Appellant has agreed that the police enforcement order may continue during the course of her proposed interim access schedule.
[20] As for the remaining argument regarding procedural fairness, it is difficult to find that this was a compelling argument given that the Appellant agreed to proceed on September 15, 2018 and did not request an adjournment. Had an adjournment been requested and denied, the issue may have been one of more significance.
Issue Two – Will the Child Suffer Irreparable Harm if the Stay is not Granted and Does the Balance of Convenience Favour a Stay?
[21] The Appellant submits that her affidavit material sets out a litany of complaints and concerns regarding access. First, the Respondent has never had overnight access. Second, the Appellant has filed doctor’s letters and supporting affidavits attesting to the child’s anxiety issues surrounding access. Access exchanges often involve screaming and crying and the child trying to run away from his father.
[22] The Appellant is firm that she wants overnight access to occur but only when L.G. is ready. He is not currently ready. She agrees that access visits have been better recently which augurs well for future progress leading up to overnight access in May 2019.
[23] The Respondent submits that the child will suffer irreparable harm if the stay is not granted as he will once again be deprived of the right to have a meaningful relationship with his father. Further delays in implementing overnight access will only play into the hand of the Appellant seeking more and more reasons to prevent its occurrence.
Ruling on Issues Two and Three
[24] I find that there would be irreparable harm to the Respondent in not allowing the stay. The Respondent has been subjected to the egregious actions of the Appellant with respect to her flagrant and deliberate refusal to obey court orders. She is currently the subject of a rarely laid criminal charge of failing to obey a court order due to her refusal to allow overnight access as ordered.
[25] There are serious issues related to the Appellant’s credibility. After bringing a Motion to Change in 2017 so that she could move to the U.S., she failed to mention in her affidavit material that she had been charged with assaulting her husband in the U.S. She also returned to Canada in 2017 but failed to inform both the Respondent and the court that she had done so. The rather minimal access provisions of the August 2017 order remained in place because the Respondent thought the Appellant was still living in Las Vegas.
[26] Paragraph 63 of O’Connell, J.’s endorsement dated October 15, 2018 recites certain parts of the Appellant’s June 20, 2018 Case Conference brief in which she talks about her life in Las Vegas with L.G., her new baby and her husband. In fact, the Appellant had not lived in Las Vegas since December 2017. Further, the Appellant issued an application in Cobourg, Ontario in March 2018 seeking custody of her child Zack with Mr. Stephen Zabinski. The Family History section of the application sets out that the Appellant had been living in Cobourg since August 1, 2017. It further states that she and Mr. Zabinski were married on February 25, 2017 but never lived together. For these, and other reasons, the court preferred the evidence of the Respondent over the Appellant in ordering overnight access.
[27] The so called medical evidence filed by the Appellant in support of why the Respondent should not have overnight access at this time leaves much to be desired. The letter of Dr. Boyer dated December 31, 2018 contains three lines. It sets out as follows:
L.G. was seen on November 8, 2018, at which point concerns were raised about possible anxiety. Play therapy was recommended to further assess and hopefully be of benefit in managing this.
[28] The letter raises more questions than it answers. Who raised the concerns? What is “possible” anxiety? This letter cannot be given any weight in determining any level of anxiety with respect to L.G.
[29] As such, I find that granting a stay would cause irreparable harm to the Respondent. Whether there would be irreparable harm to the child is a separate issue and inextricably intertwined with the issue of best interests and will be addressed below.
Is it in the Child’s Best Interests to Grant a Stay?
[30] While the Appellant has not met the formal test for granting a stay, there remains the important issue of determining what is best for L.G.
[31] I have already commented on concerns with the Appellant’s credibility, as found by O’Connell, J. However, the fact remains that (no matter what the reason), L.G. has never had an overnight visit with his father to this point.
[32] While I also have concerns about what type of anxiety (if any) the child is allegedly experiencing on access changeover, I cannot ignore certain concerns raised by Appellant including the following:
a. L.G. has had to be forcibly carried onto the GO train kicking and screaming that he does not want to visit with his father.
b. L.G. has told CAS workers and the Appellant that his father is mean to him, makes rules that are opposite to those of his mother, and that he no longer wishes to see his father.
c. The Respondent is only seeking expanded an overnight access so that he can qualify for a larger subsidized apartment.
d. The Appellant has emailed the Respondent stating that L.G. told her he wished his father would die or move to India.
e. Previous police involvement has been distressing and anxiety provoking for L.G.
[33] Many of these statements from the Appellant are hearsay, uncorroborated and untested. However, the court must ensure that the child’s best interests are its paramount consideration. L.G. should have been seeing his father for overnight access as of the fall of 2018. That has not happened. I do not see that a further short delay will cause irreparable harm to the child. However, plunging the child directly into overnight access without some form of transition period is likely not in his best interests given an alleged level of anxiety, the animosity between these parties, and the possibility that such a quick move to overnight access could cause the child irreparable harm.
[34] My comments in this regard are in no way meant to be construed that the Appellant’s position has merit. She has not met the test for a stay. However, on balance, and in consideration of the child’s best interests a transitional period is in order.
[35] The Appellant’s proposal for transitional access in her Notice of Motion suggests 8-10 hours a day of access on alternating weekends for 12 access visits, then eight hours on both Saturday and Sunday on alternating weekends for 12 access visits, then overnights on alternating weekends from Saturday at 1:00 p.m. to Sunday at 5:00 p.m.
[36] On the day of the motion she proposed one weekend day on two out of three weekends for six hours a days until March 31, 2019 and commencing the weekend of January 5, 2019. This would mean the Respondent would receive eight visits instead of the 12 suggested in the Notice of Motion. The Respondent would then have access for at least six hours a day on alternative weekends until May 25, 2019 when overnights would begin. This would give him four alternate weekends (instead of 12) until the overnight weekends began. The timing for the overnight weekends is suggested as 12:00 p.m. Saturday to 4:00 p.m. Sunday. In the Notice of Motion the visits are proposed to extend from 1:00 p.m. on Saturday to 5:00 p.m. on Sunday. It is acknowledged that the schedule proposed by the Appellant on the day of motion is similar to the one in her Notice of Motion and in fact accelerated in terms of when overnight access will begin.
[37] What is curious about the Appellant’s proposed schedule is that in her Notice of Motion for the September 15, 2018 she proposed two eight hour visits on weekend days instead of the overnight visits. I see no reason why the Respondent’s visits should now be restricted to six hours per day.
[38] Finally, I have the Appellant’s undertaking, given in open court, that she will comply with the transitional schedule she proposed which will culminate in overnight access. If she does not comply, and given the history of this matter, the consequences of non-compliance are likely to be serious.
COSTS
[39] The parties have agreed that the successful party will be entitled to costs of $2000. Neither party has had real success. A finding has been made that the Appellant did not meet the test for a stay pending appeal. She had success solely on a best interests argument and only as a result of proposing an accelerated schedule on the day of the motion.
ORDERS
[40] There shall be a finding that the Appellant has not met the test for stay pending appeal in this matter. However, it is in the child’s bests interests that a short transitional period occur before overnight access begins.
[41] Therefore, pending the hearing of the appeal, the Respondent shall have access to the parties’ child, L.G. as follows:
a. One day each weekend, every two out of three weekends, for eight hours commencing the weekend of January 5, 2019.
b. Commencing the weekend of March 30, 2019, alternate weekends for eight hours each weekend day.
c. Commencing the weekend of May 25, 2019, overnight access on alternate weekends from 12:00 p.m. on Saturday to 5:00 p.m. on Sunday.
[42] The Appellant will drop off the child at the Respondent’s residence at the commencement of each access visit. The Respondent will transport the child back to the Appellant’s residence at the conclusion of each access visit.
[43] The Appellant consents to the continuation of the police enforcement provisions in the order of November 15, 2018. There shall therefore be no stay of that order.
[44] Given the Appellant’s undertaking to the court to comply with this schedule, there shall be no deviation from it for any reason. In the event the Appellant fails to comply with this schedule, the appeal court may wish to consider receiving fresh evidence with respect to any failure to comply by the Appellant.
[45] If the Appellant fails to comply with this schedule for two or more consecutive visits, the Respondent may bring a motion on notice before me for compliance, costs and a re-consideration of the stay issue if overnight access has not yet occurred.
[46] No costs.
C. Gilmore, J.
Released: January 4, 2019
COURT FILE NO.: FS-18-6543 DATE: 20190104
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Taryn Grieder Applicant (Appellant on Appeal)
– and –
Oleh Kovalchuk Respondent (Respondent on Appeal)
Released: January 4, 2019
[^1]: Watt v. Howe, 2016 ONSC 7405 at para 8. [^2]: Ibid at para 9.