Court File and Parties

COURT FILE NO.: FC-15-1833 DATE: 2020/04/29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maxime Gaetan Levesque, Applicant -and- Lindsay Windsor, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Ron Shulman for the Applicant Deanna Paolucci/Manraj Grewal for the Respondent

HEARD: April 28, 2020, in writing

Endorsement

[1] The Applicant father has filed a Notice of Appeal to the Divisional Court of Justice of Shelston’s final order dated January 17, 2020. The Notice of Appeal was filed on February 16, 2020. Leave to appeal was not required. The Applicant father now seeks to have an urgent motion scheduled to stay the custody and parenting schedule set out in Justice Shelston’s Order pending the appeal.

[2] On April 24, 2020, Justice Audet, acting as the Triage Judge under the March 15, 2020 suspension of the Ontario Superior Court of Justice’s regular operations, found that this matter was urgent, but that, as a preliminary issue, the jurisdiction of this Court to hear the motion to stay must be determined. Both parties were invited to file written submissions on the jurisdiction issue, and have done so.

[3] The parties disagree on whether the Applicant father’s motion for a stay pending his appeal should have been brought to the Superior Court of Justice (the trial court), or the Divisional Court (the appeal court).

[4] The final order under appeal provides for custody and access for the parties’ children. The order is made under the Children’s Law Reform Act. The parties agree that the appeal of this decision lies to the Divisional Court, under s.73 of the Children’s Law Reform Act and s.21.9.1 of the Courts of Justice Act (Mattina v. Mattina, 2018 ONSC 1569, 11 R.F.L. (8th) 69, at para. 33).

[5] The Respondent mother argues that because the Applicant father’s appeal has been launched, the Superior Court of Justice no longer has jurisdiction to grant a stay of the order under appeal or that it would be inappropriate to exercise this jurisdiction.

[6] The Respondent mother relies on the decision of the Ontario Court of Appeal in Bijowski v Caicco, [1985] O.J. 1550, which held that Rule 63.02 of the Rules of Civil Procedure conferred a restricted jurisdiction upon the trial judge or another judge of that court in his absence to stay an order. That jurisdiction was limited to making orders that were only effective until the notice of appeal was launched, after which the jurisdiction is then with the appellant court.

[7] However, Rule 63.01(2) was amended after the Bijowski v Caicco decision. At the time of the Bijowski v Caicco decision, Rule 63.01(2) provided:

63.02 (1) An order, whether final or interlocutory, may be stayed on such terms as are just, by,​ (a) an order of the court whose decision is to be appealed, but the stay expires,​ (i) when the time for delivery of a notice of motion for leave to appeal or notice of appeal expires, or​ (ii) when a notice of motion for leave to appeal or notice of appeal is delivered, whichever is earlier; or​ (b) an order of a judge of the court to which a motion for leave to appeal has been made or an appeal has been taken.​

[8] In 1993, Rule 63.02(1) was amended to provide:

63.02 (1) An interlocutory or final order may be stayed on such terms as are just, (a) by an order of the court whose decision is to be appealed; (b) by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken. O. Reg. 465/93, s. 8.

[9] Justice Himel considered this amendment in Noble v Noble, [2002] O.J. No. 4997 (Ont.S.C.). Justice Himel distinguished the decision Bijowski v Caicco, holding that the change to Rule 63 gave concurrent jurisdiction to the trial court and the appeal court on a motion for a stay. See also Murphy v. Wheeler, 2014 ONSC 4734; Kennedy Electric Ltd. v. Dana Canada Corp., 2005 CarswellOnt 1132 (Ont. S.C.); Hanemaayer v. Freure, [2004] O.T.C. 705 (Ont. S.C.).

[10] The Respondent mother also relies on the decision in McNeil v Barrett, 2018 ONSC 212. That was a decision of the Divisional Court on a motion to stay. The decision in McNeil v Barrett is consistent with the principle that both the appeal court and the trial court have concurrent jurisdiction to determine motions to stay. The decision in McNeil v Barrett does not hold that the Divisional Court has exclusive jurisdiction.

[11] I find that Rule 63.02(1) gives this court concurrent jurisdiction to determine the Applicant father’s motion for a stay. (Noble v Noble, [2002] O.J. No. 4997 (Ont.S.C.); Murphy v. Wheeler, 2014 ONSC 4734; Kennedy Electric Ltd. v. Dana Canada Corp., 2005 CarswellOnt 1132 (Ont. S.C.); Hanemaayer v. Freure, [2004] O.J.No.3330 (Ont. S.C.)).

[12] The Respondent mother also argues that it is not appropriate for this court to determine the motion to stay. Given my finding that this court has concurrent jurisdiction, the onus is on the Respondent mother to satisfy the court that it should not exercise its concurrent jurisdiction. The Respondent mother has not met this onus. Although the Respondent mother argues that the Divisional Court is “better suited” to determine the motion to stay, she does not explain why this is, particularly given the court’s concurrent jurisdiction. I also note that the process of hearing the motion would be remarkably similar in both courts. Every judge of the Superior Court of Justice is also a judge of the Divisional Court [s.18 of the Courts of Justice Act]. Motions to stay would be determined in both courts before a single judge. Both courts are hearing urgent matters remotely during this period of suspension. In both cases, only the appeal court may set aside or vary a stay, whether granted by the trial court or by a judge of the appeal court (r 63.03(3)).

[13] Accordingly, given Justice Audet’s finding of urgency, the Applicant father’s motion for a stay shall be scheduled by the Trial Coordinator, for one hour, for a date during the week of May 4th or 11th, 2020.

[14] Both parties have already filed comprehensive affidavits that appear to address their arguments on the substantive stay issue, although on short notice (particularly for the Respondent). Given that the motion material they filed focused on the issue of urgency, out of fairness I will allow each party to file further affidavit material on the issue of whether a stay should be granted pending the appeal, as follows:

a. Any additional affidavit material by the Applicant father to be served and filed before Friday, May 1, 2020, at 4 pm; b. Any additional further affidavit material by the Respondent mother to be served and filed before Tuesday, May 5, 2020, at 4 pm; c. Each party shall file a factum of no more than 15 pages, double spaced – the Applicant father’s factum to be served and filed before Wednesday, May 6, 2020, at 4 pm; the Respondent mother’s factum to be served and filed before Thursday, May 7, 2020, at 4 pm. Caselaw should be referenced by including active hyperlinks in the pdf version of the factum.

[15] Costs reserved to the Judge determining the motion to stay.

Dated: May 1, 2020

Justice P. MacEachern

Released: April 29, 2020