MOTION HEARD: 2020/08/27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Steven Paquette, Applicant
AND:
Shawna Middlebrook-Crowder, Respondent
BEFORE: The Honourable Regional Senior Justice M. G. Ellies
COUNSEL: S. Sikora, for the Applicant
P. Trenker, for the Respondent
HEARD: August 27, 2020
REASONS FOR DECISION
OVERVIEW
1Ms. Middlebrook-Crowder (“the mother”) moves to stay the temporary order of Mathias J. of the Ontario Court of Justice (the “OCJ”) pending the appeal of that order. The July 29, 2020 order granted Mr. Paquette (“the father”) access to two children, A.B. and C.D., to be supervised by the father’s girlfriend or his mother.
2The motion judge granted the father access to the children notwithstanding the fact that he had been convicted of sexually interfering with other children on three previous occasions.
3For the following reasons, a stay is granted of the order as it relates to A.B., without prejudice to the father to provide further evidence of the circumstances surrounding the previous convictions and how supervision by his girlfriend or mother will protect that child.
FACTS
4Briefly stated, the facts before the motion judge were as follows.
5The parties commenced a relationship in July 2015 and married in November 2015. A.B. was born shortly after the parties were married. Although A.B. is not the father’s biological child, he stands in the place of a father to her. He is listed as her father on the Statement of Live Birth. C.D. was born in November 2016. He is the biological child of both parties.
6The parties separated in October 2018. Since then, the children have resided primarily with the mother.
7The father had access to the children from the date of separation to July 2019. He deposed that he had primary care of C.D. for the months of May, June, and July of that year because the mother was suffering from medical issues.
8The parties signed a separation agreement in May 2019, which the father contests. That agreement provided for access to the children as agreed upon by the parties.
9As the mother was aware during their relationship, the father was convicted in 2012, 2013, and 2014 of sexual interference against three different children.
10In August or September 2019, the mother suspended access and complained that the father had again committed sexual interference, this time with one or both of her own children. That allegation was investigated by the Children’s Aid Society, who were unable to substantiate it.
11In October 2019, the mother wrote to the father via email and offered to allow him to resume access, supervised by his girlfriend. The father exercised such access with C.D., but not with A.B.
12Access was again suspended by the mother in or about November 2019, resulting in the father’s application to the OCJ, within which application the impugned order was made. The mother moved to eastern Ontario in January 2020. The father brought a motion for supervised access in April 2020, but the motion was delayed when the mother made further allegations that the father had assaulted the children. An investigation by the North Bay Police Service resulted in no charges being laid.
13The father’s motion finally proceeded before the motion judge on July 28, 2020. The next day, she released reasons for granting an order providing the father with weekend access to both children, to be supervised either by the father’s girlfriend or his mother.
14Following the order, the father was granted access by the mother only to C.D. That access has now also been suspended by the mother.
ISSUES
15Counsel for the mother argues that the motion judge made two legal errors.
16First, he submits that the motion judge “started at the wrong point.” He argues that, in the circumstances, the father had an onus to adduce evidence that he was no longer a danger and that he failed to meet that onus.
17Second, counsel submits that the motion judge ought to have been more specific in setting out the obligations of the supervisors.
18Both submissions relate to the extent to which the supervision order addresses the potential harm to the children arising from the father’s criminal record. As I will explain, I have a similar concern, but mine is focused more on deficiencies in the record before the motion judge about past events than it is on deficiencies about the present or the future. Without knowing more about the circumstances surrounding the previous convictions, the motion judge could not have known what supervision, if any, would prevent A.B. from becoming another victim.
ANALYSIS
The Test for Granting a Stay
19The test for staying an order pending an appeal in a child access case is the same as the test for staying any civil court order, modified as the context requires. The party seeking the stay must satisfy the court:
(1) that the appeal raises a serious question that the judgment being appealed from is wrong;
(2) that the children will suffer irreparable harm if the stay is not granted; and
(3) that the balance of convenience favours a stay: Lefebvre v. Lefebvre (2002), 2002 17966 (ON CA), 167 O.A.C. 85, [2002] O.J. No. 4885 (Ont. C.A. [In Chambers]).
20The first branch of the test requires the court to assess the merits of the appeal. Different courts have used different phraseology to describe what raises a “serious question”: Moffat v. Miller, 2014 ONSC 6649, at para. 13; McNeil v. Barrett, 2018 ONSC 212 (Div. Ct.), at paras. 25-35; Levesque v. Windsor, 2020 ONSC 3110, at paras. 43-46. Before me, the parties relied on jurisprudence using the “not frivolous or vexatious” phraseology and I am prepared to use that. In any event, the cases all say that the bar is low and, as I will explain, I believe it has been met.
21Many cases decided since the Court of Appeal’s decision in Lefebvre have collapsed the second and third branches of the test into one and looked at the test more holistically: Mudry v. Danish, 2014 ONSC 4335 (Div. Ct.), at para. 167; Miller, at para. 12; Levesque, at para. 56. What matters is whether the children’s best interests are likely to be adversely affected if a stay is not granted pending the outcome of the appeal: Miller, at para. 12.
The Merits of the Appeal
22As it relates to the child A.B., I am satisfied that there is merit to the appeal.
23In his motion, the father asked for supervised access to the children, rather than unsupervised access. The father proposed two alternate means of supervision. First, he proposed that access be supervised by his girlfriend or his mother, preferably his girlfriend because his mother lived outside of North Bay and he lived with his girlfriend. Alternatively, he proposed that access take place at the Supervised Access Centre. However, there was evidence before the motion judge that the access centre had been closed due to the COVID-19 pandemic.
24It is understandable that the motion judge might opt for supervision by the girlfriend or mother in these circumstances. However, with respect, it was incumbent upon her in the context of this case to ensure that such an order would protect the children. The record before her would not allow her to do that as far as A.B. was concerned.
25The fact that the father asked only for supervised access was at least a tacit admission that, for the purposes of the motion for access, he posed a risk to children. This was amply supported by his criminal record, which he admitted. However, there was very little evidence as to the facts underlying that record. Both in his original supporting affidavit and in his reply affidavit, the father provided no details with respect to the factual basis upon which he had been convicted of sexual interference.
26The only evidence with respect to the facts underlying the convictions came from the mother. She deposed that her understanding of the facts surrounding the father’s convictions was “not complete”. However, she did say that the three convictions related to children aged 12, 13 and 15 years. One of them was a relative. Importantly, all three were females. The mother attached copies of newspaper clippings with respect to two of the incidents. One was a report from April 2012 indicating that the father had plead guilty to raping a 13-year old girl in a trailer. The other is a report dated May 7, 2013 in which the father is said to have been caught by a police officer in the company of a young girl, as a result of which he was charged with sexual interference, assault police, and breach of probation.
27Thus, the motion judge had before her evidence that the father posed a significant risk to young girls and a request by the father to have access to a young girl. In those circumstances, in order to ensure that such an order was in the best interests of the young girl, the motion judge needed to know that supervision by either the girlfriend or the mother was enough to protect the child. The motion judge could not know whether it was enough without knowing more about the circumstances surrounding the convictions. In particular, she needed to know what supervision, if any, existed at the time the offences occurred. There was no evidence about that. Without it, the motion judge could not know whether the order she was asked to put in place was enough.
28The motion judge’s reasons make it clear that she did rely on relevant evidence in arriving at her conclusion. She highlighted the fact that the mother chose to marry and have a child with the father, knowing about his criminal record. She also referred to evidence that the father had been given access after the parties separated and highlighted the fact that recent allegations of sexual interference by the mother had been investigated and not substantiated. She concluded that “the safety of the [two] children can be ensured by the presence of either [the girlfriend] or [the father’s mother] as supervisors for the father’s access with the two children.”
29With respect, however, unless the motion judge knew more about the offences with respect to which the father had been convicted, she could not properly arrive at this conclusion as it relates to the female child, A.B.
Irreparable Harm and Balance of Convenience
30Unquestionably, irreparable harm could result to A.B. if the motion judge’s order is not stayed as it relates to her. However, I have a concern about how long the stay should last.
31It is hard to know when the father’s application will get to trial or some other form of hearing before the OCJ during this pandemic. The same is true with respect to the hearing of this appeal, although my hope is that it will be heard sooner, as it is unlikely to involve anything other than a paper record. If the appeal is successful, the temporary order will be quashed. The parties would be free to seek another temporary order from the OCJ. If the appeal is not successful, the stay will be lifted. In either case, A.B. may be uprooted. It seems to me that it is in A.B.’s best interests to know now whether the evidence can support a supervision order of the type imposed by the motion judge. If it can, then it is in A.B.’s best interests to enjoy access with her father pending the disposition of the application before the OCJ.
32I am not constrained to making a permanent order in this motion to stay. Rule 38(35) of the Family Law Rules, O. Reg. 114/99, as amended, permits the court to stay an order “on any conditions that the court considers appropriate”. In this case, I think it is appropriate to provide the father with an opportunity to file further affidavit evidence before this court about the facts underlying the convictions for sexual interference, if he wishes to do so. It should also be open to him to file further affidavit evidence to show how, in light of those facts, supervision by his girlfriend or mother will ensure that A.B. is protected.
CONCLUSION
33The motion judge’s order is stayed as it relates to A.B.
34The father shall have 20 days in which to deliver affidavit materials relating to the facts underlying his convictions and how access supervised by his girlfriend or mother will protect A.B. The mother shall have 10 days from the date of service of those materials within which to deliver responding materials.
35If the father fails to deliver further affidavit materials, the stay shall be in force until the hearing of the appeal or until the final decision of the OCJ, whichever occurs first.
36Cost submissions will be entertained following the court’s further order.
Ellies R.S.J.
Date: August 28, 2020