COURT FILE NO.: FS-20-0224-00AP
DATE: 2020-12-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.B.
M. Cupello, for the Appellant
Appellant
- and -
J.B.
C. Marello, for the Respondent
Respondent
HEARD: December 10, 2020, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons on Motion to Stay
Overview
[1] The mother[^1] seeks a stay of the interim access order of MacKinnon J. of the Ontario Court of Justice dated November 5, 2020 allowing unsupervised access to the father pending the appeal of that order.
[2] For the reasons that follow, the motion to stay is granted with a variation of the Order of MacKinnon J..
The Facts
[3] The parties were married in July 2016 and separated in March 2018. They are the parents of a young child who is almost 4 years old.
[4] Since separation, the mother has only allowed the father access to their child if the access is supervised. Supervised access was facilitated initially through Delico and then the Supervised Access Centre. No agency has ever raised issues with the father’s ability to parent.
[5] It is acknowledged that the father suffers from mental health issues and has received treatment for posttraumatic stress disorder and depression including admission to the Homewood Health Centre for three months in the summer of 2018. He has been under the care of a psychiatrist.
[6] Following separation, the mother charged the father with an historic assault (December 2016) and the father was acquitted after trial in the Ontario Court of Justice in October 2018.
[7] The father had a car accident in October 2019 and was hospitalized for about 10 days because a contributing cause to the accident was an overdose of prescribed medication. The father denied that he was suicidal, and that the overconsumption of the medication was accidental. His parents attended from southern Ontario and he was discharged into the care of his usual psychiatrist.
[8] The father has not had any access to his child since then, now over a year ago.
[9] MacKinnon J. heard the father’s motion for access on March 4, 2020. The mother opposed access and sought supervised access due to concerns relating to the father’s mental health.
[10] In her reasons dated November 5, 2020, MacKinnon J. outlined the mother’s concerns with the father’s mental state and concluded that there “is no evidence of any effect on (the child) or his relationship and interaction with his father as a result of his father’s mental issues.” MacKinnon J. concluded:
I find that the Respondent has failed to provide a sufficient basis on which the access of (the child) to his father needs to be supervised.
Access between (the child) and his father should be reinstated on a gradual basis for the comfort of the child. The Respondent has argued that the father is a stranger now to (the child). (The child) has a right to know his father and have a relationship with him.
[11] MacKinnon J. ordered unsupervised access commencing November 8, 2020 for two hours each Sunday morning for three weeks followed by 4 ½ hours each Sunday for further three weeks and two periods of four hours each between December 24 and 26. Commencing December 27, 2020, the father was to have access to days of the week including one overnight visit. MacKinnon J. also ordered that the parties were to return for a settlement conference in January 2021 with the father to provide a medical report on his mental state.
[12] The mother has appealed this order and not granted access to the father in the meantime.
Positions of the Parties
[13] The parties agree that the test for granting a stay of a custody and access order is the three-part test which requires the moving party to show that:
i. The appeal raises a serious question that the trial judgement was wrong;
ii. The child would suffer irreparable harm if the stay were not granted; and
iii. The balance of convenience favours a stay.
Ref: Lefebvre v. Lefebvre, 2002 CanLII 17966 (ON CA), at para 6, Tzaras v. Tzaras [2007] O.J.
No. 5061, at para 19.
[14] The mother argues that her appeal is neither “frivolous or vexatious” because the motion judge granted the father unsupervised access immediately despite a lengthy period of no access.
[15] The mother argues that there is a risk of irreparable harm to the child given the father’s mental health issues.
[16] As to the balance of convenience, the mother submits that the court must balance the risk of potential harm to the child against the harm to the father in not having unsupervised access. The mother offers supervised access and submits that the harm suffered in imposing supervised rather than unsupervised access is minimal contrasted with the risk of harm posed by the father’s mental health condition.
[17] The father reminds me that the onus is on the mother to show that there is a valid reason for departing from the general rule that an access order should not be stayed pending an appeal and that, as always, the overriding principle is the best interest of the child.
[18] The father argues that the mother has not identified any error of law or any misapprehension of the evidence in the decision of MacKinnon J.. He argues that the decision on interim access is entitled to deference.
[19] As to irreparable harm, father argues that there is no evidence of harm but only suspicion and echoes the statement of Sproat J. in Tzaras v. Tzaras, [2007] No. 5061 at paragraph 28: “Suspicion without evidence is not a proper basis for ordering supervised access.”
[20] When balancing convenience, the father argues that this must be considered through the lens of the best interests of the child and that, given that the mother has blocked the father’s unsupervised access for a year or more, the balance of convenience does not favour a stay.
Analysis and Disposition
[21] Counsel for the mother acknowledges that the mother bears the onus of demonstrating that a stay should be granted and that the granting of a stay is the exception.
[22] It is not my task to decide the merits of the appeal. However, the temporary access order provides for graduated unsupervised access for two hours each week for three weeks followed by three weeks of 4 ½ hours each week, two four hour periods over Christmas, and then a single night of overnight access per week. Justice MacKinnon also directed a settlement conference in January 2021 and a medical report from the father to monitor the progress of the parties with her temporary order. It does not appear that the motions judge misapprehended the facts or the law in reaching her decision. No agency or healthcare provider have raised any issue with the father’s ability to safely parent. It should be noted, however, that this is very young child has had no contact with the father for over a year.
[23] I recognize that the mother has concerns but agree that ‘suspicion without evidence is not a proper basis for ordering supervised access” and that suspicion is not a basis for concluding that the child will suffer irreparable harm if unsupervised access is granted.
[24] With respect to balance of convenience, I note that at the time the motion was heard before MacKinnon J., the father had not seen the child for about five months. At the time that reasons were delivered the father had not seen the child for a year. The child, who it is almost four, has not had any contact with his father for that time. As MacKinnon J. noted, the mother argued that the father is a stranger to the child. I accept that this is the case although I do not fault the father for this.
[25] From the perspective of the best interests of the child, brief supervised access with the assistance of the professionals at a Supervised Access Centre would ensure that the child’s emotional needs during the early reintegration with the father are adequately addressed. I conclude that the balance of convenience favours granting a stay which varies the order below.
[26] Accordingly, I would grant the stay but only to the extent that the order of MacKinnon J. is varied to provide that the access schedule will be amended to have three supervised access visits prior to the commencement of the schedule ordered by MacKinnon J.
[27] These supervised access visits should be arranged as soon as possible with one visit for one hour the first week and the next two visits for two hours each week. A report should be provided from the Supervised Access Centre after the second visit.
[28] Thereafter, the schedule ordered by MacKinnon J. will continue except the dates shall be varied. The access set for December 24 – 26 will not apply. All other aspects of the order will continue including the requirement for the settlement conference and the medical report from the father to be delivered by January 11, 2021.
[29] Costs of this motion are to be determined by the judge hearing the appeal.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: December 18, 2020
COURT FILE NO.: FS-20-0224-00AP
DATE: 2020-12-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.B.
Appellant
- and -
J.B.
Respondent
REASONS ON MOTIONS TO STAY
Newton J.
Released: December 18, 2020
/cjj
[^1]: Generic descriptors are used in these reasons to protect the privacy of the parties and their families.