COURT FILE NO.: FS-20-40

DATE: 2021-08-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andrew James Morrow, Applicant

AND:

Lauren Anne Hitchman, Respondent

BEFORE: Kurz J.

COUNSEL: R. Niman, for the Applicant

M. McCarthy and J. Grys, for the Respondent

HEARD: August 3, 2021

ENDORSEMENT

Introduction

[1]

Introduction

This is a motion by the Respondent mother (“the mother”) for a stay of a term of an interim parenting award by arbitrator, Roslyn Tsao (“the arbitrator”), dated May 26, 2021 (“the award”). The mother seeks to stay the term of the award that eliminates the requirement that the Applicant father (“the father”) undergo alcohol testing with a portable Soberlink breath testing device (a process described in the materials as ”RAMP testing”) four times per day (“the term”). The mother asks that the term be stayed until her motion for leave to appeal the award is decided and if leave is granted, until the appeal is heard. That would mean that the requirement that the father undergo RAMP testing four times per day that he parents the parties’ children will be reinstated.

The First Award

[2]

The First Award

On July 10, 2020, the arbitrator made her first interim without prejudice parenting award regarding the parties (“the first award”). The arbitrator granted the father parenting time to the parties’ two children, whose names I have initialized as E, aged 4 and B, aged 7, on alternate weekends and Tuesday and Thursday evenings. She also allowed the mother or her parents to check in on the father on two designated times on his weekend parenting days. The father was granted FaceTime contact with the children on his non-parenting days.

3Of greater import to this motion, the arbitrator ordered that the father undergo RAMP testing four times per day on the days in which he is parenting the children. She also ordered that he install and use an Alcolock ignition device on his automobile. The device prevents automobile use unless the driver is able to provide a breath sample that registers below a designated limit. The father offered the fours times daily RAMP testing to the arbitrator as a way of proving his sobriety and thus assuring the arbitrator that she could grant him overnight and relatively unsupervised parenting time.

4During the hearing that led to the first award, the mother raised issues regarding the father’s drinking and mental health. She felt that his parenting time should be supervised.

5The father acknowledged only that he had consumed alcohol more frequently and to a greater degree in April and May of 2020, but never in a parenting role and never while driving with the children.

6The arbitrator found some merits in the mother’s claims. She pointed in particular to two incidents regarding drinking raised by the mother in which the father failed to fully respond or respond at all. She also pointed to the father’s depression arising from the separation of the parties and his difficulties avoiding the expression of his sadness in front of the children.

7The arbitrator described the father’s difficulty admitting to difficult truths regarding his parenting and his relationship with the mother. Yet she also commended him for acknowledging some of his own challenges. She stated that he did not simply offer blanket denials in his affidavits. The arbitrator was critical of the father’s judgment in returning to live at the parties’ Collingwood cottage, where the mother and children had been living after the parties’ separation. He did so on 20 minutes’ notice and knowing that he was not welcome back. That created a scene in front of the children.

8Yet the arbitrator also found strengths in the father as a parent and that it was in the best interests of the children to have a regular relationship with him. She was not prepared to accept that the father had any clinical diagnosis of mental illness.

9The other hand she found that she could not accept either parent’s narrative of the role that the father played before the separation. While she did not agree with the father’s claim that the mother is so controlling that she would not accept anything short of supervision, the arbitrator did state that she hoped that “the Mother will come to her own acceptance and confidence in the Father's parenting skills, and if she does not, the Father will have reason to challenge a continued unreasonable scepticism if it restricts his parenting relationship.”

10The arbitrator found that each of the parents needs to change somewhat. The father must understand that addressing his alcohol consumption will not resolve all of the mother’s concerns. On the other hand, the mother needs “to understand that the children are entitled to have an independent relationship with their Father given separation.”

11The arbitrator described her decision as intended to “‘buy peace’ until the fall [of 2020] in the best interests of their children and not as part of some overall scorecard as the parties embark on resolving their marriage breakdown.” She was clear that the terms of her order were intended to cover “the summer and into the fall”. The terms of her award were “designed to give the Father the opportunity to demonstrate his acknowledgment of the Mother's concerns without being immediately scrutinized for mistakes and to give the Mother the comfort that the children's welfare is paramount. As well, the parties need some road map for the next few months to take the temperature down and set in place a routine in two separate households for the children.” In other words, this was not intended to be an interim award that would remain in place until the final arbitration of the parenting issues.

12The arbitrator further expressed the hope that the parties can “stand down” to allow the children to come out of “this current period of tension between their parents relatively unscathed”.

13The arbitrator chose not to require the supervision of the father’s access. Rather, she accepted his proposal regarding RAMP testing four times per parenting day as well as an Alcolock device in his car and the right to randomly drop in on his weekend access.

The Second Award

[14]

The Second Award

Less than ten months later, the mother moved to increase the father’s RAMP testing during his parenting time to five days per parenting day. In addition, she asked the arbitrator to allow a supervisor to receive the RAMP results when previously those results were limited to the mother and her counsel. The mother further asked that the father’s parenting time be supervised if he did not comply with testing. She argued that he had missed 30 RAMP tests since the first award, that he was not being cooperative with either the testing or in his attitude towards her. She believed that even greater monitoring was required.

15The father brought a cross-motion to increase his parenting time and end the check-in times by the mother and/or her parents. He also sought a change to his RAMP testing. The wording of his notice of motion is in question in that the mother states that he never asked to end RAMP testing and the arbitrator erred in law in granting relief that was not sought. On five occasions in his notice of motion, the father’s request for relief began with the words: ” [a]n Award that if the Arbitrator deems any testing necessary, that …” to describe relief that he was seeking. That relief included increased parenting time and reduced use of the Soberlink portable breathalyzer if RAMP testing was deemed necessary.

16The day before the hearing of the motion before Ms. Tsao, the parties agreed to expand the father’s parenting times to extend his Thursdays to overnights on both his parenting and non-parenting weekends. On the father’s parenting weekends, his parenting time would begin on Thursday rather than Friday. When faced with the argument that she was conceding that the father could safely parent the children, the mother asserted that she did not understand that the father had been requesting an end to RAMP testing. Had she so understood, she would not have agreed to those terms. However she is not seeking leave to appeal them.

17In her second award, the arbitrator went beyond attempting to “buy peace” between the parties. She considered the veracity of the mother’s allegations of the father’s alcohol abuse during the parties’ period of cohabitation in some detail. She pointed to a letter from the mother’s lawyer to the father shortly after separation, stating that there were “very few issues to be resolved between you. Lauren wishes to move ahead quickly to attempt to resolve a mutually satisfactory separation agreement, dealing with custody and access of your daughters, as well as the support and property matters.” As the arbitrator pointed out, the letter did not refer to concerns about drinking and parenting. She went on to find that “there were few alcohol related concerns raised by either party during the marriage.”

18The arbitrator went further, to critically consider the credibility of the mother’s allegations against the father. She was found that “[i]t is of some concern that the Mother's evidence has evolved from more circumspect suspicions of alcohol-abuse last July to a blanket declaration by the time of her May 5, 2021 reply affidavit.” She referred to the mother’s allegations as a form of “score keeping”.

19The arbitrator went further, finding that “almost none of [the mother’s concerns regarding the father raised in the second arbitration] are related to alcohol-abuse or mental health issues which might justify the ‘supervisory’ terms which she seeks, especially by check-ins by a third party.” The arbitrator continued, stating that “

the Mother raises no substantive concerns about the welfare of the children during their time with the Father. There is no indication that the children have been unwilling to go on their parenting time with their father. There are no substantiated allegations of their needs not being met or that they are not having good parenting time with their Father. … Of note, the above concerns really have no relation to alcohol consumption at all.

20The arbitrator found that she had been presented with “no clinical evidence of alcoholism or anything approaching same”. Further she stated that: “…I have no evidence before me that the Father has consumed alcohol in the period 12 hours before and during his parenting time over the past 10 months since the Award. I accept that the ALCOLOCK mechanism on the Father's vehicle necessitates additional "clear" tests during the day when the Father drives to pick up/drop off the children.”

21She concluded regarding allegations of alcohol abuse during the father’s parenting time that “[t]he 10 months of RAMP testing have shown, at the very least, that the Father can control his consumption as and when he desires. There is no basis to conclude that he will not continue to be able to refrain from consuming alcohol, before and during his parenting time as ordered.”

22In deciding that further RAMP testing was no longer in the best interests of the children, the arbitrator found that:

The 10 months of onerous RAMP testing, ALCOLOCK protocol, and check-ins on each of his parenting weekends has impaired the quality of his time with the children in the interests of the urgent circumstances facing the parties last July 2020. The parties have been separated for 2 years now, have re-housed and gotten through the better part of a year of co-parenting. The children have, by now, acclimated to two households. As stated in the Interim Award, the alcohol-related terms were meant to be short-term to "buy peace". The Father has not displayed any behaviour that is related to alcohol abuse. This may be only due to the interim terms but my hope is that the Father has accepted that his consumption leading up to the events of last April/May should not be repeated even though the RAMP testing and check-ins will now cease.

Arguments of the Parties

[23]

Arguments of the Parties

In seeking a stay of the arbitrator’s second award, the mother argues that:

a. The arbitrator made “numerous significant factual errors”’;

b. Erred in law and breached her procedural right to fairness by making an award that neither party had requested;

c. The errors of fact made by the arbitrator cumulatively add up to an error of law that meets the test of the arbitration agreement.

d. There is a risk of irrevocable harm if the father is allowed to have parenting time with the children without the RAMP testing.

e. The balance of convenience favours a stay in that RAMP testing is minimally intrusive.

f. The court should be loathe to change a “long-standing” parenting arrangement pending the hearing of an appeal.

24The father argues that the arbitrator carefully considered the circumstances of this case after making her first award. That first award was made without prejudice. It was intended to “buy peace” and get the parties through to the fall of 2020 only. Accordingly, the first award should be considered to be the equivalent of an interim-interim award. The arbitrator’s adoption of the use of RAMP testing came at the suggestion of the father. He never failed a RAMP test over the almost ten months until the second award was granted. 8-9. The same is true regarding the Alcolock car ignition testing as well. The father argues that he has proven that the RAMP testing is unnecessary and intrusive. It further adversely affects his parenting time with the children. He relies on Ms. Tsao’s findings of fact, which, as set out below are not subject to appellate review.

25He adds that there were no errors of law in the arbitrator’s award. Any close reading of his notice of motion shows that he intended to have the RAMP testing discontinue. He only spoke of alternatives if the arbitrator was not willing to fully discontinue that testing.

Arbitration Agreement’s Test for Leave to Appeal

[26]

Arbitration Agreement’s Test for Leave to Appeal

The parties’ arbitration agreement sets out that interim /interlocutory arbitration awards can only be appealed with leave, as provided by s. 45. (1) of the Arbitration Act and the Family Law Statute Amendment Act. The agreement further states that the test for leave to appeal an interim /interlocutory arbitration award requires the satisfaction of the following two-part test:

(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and

(b) determination of the question of law at issue will significantly affect the rights of the parties.

Law re Stay

[27]

Law re Stay

Section 50(5)(b) of the Arbitration Act allows a court to stay the enforcement of an arbitration award until an appeal of that award is completed. The provision reads as follows:

Pending proceeding

(5) If the period for commencing an appeal, application to set the award aside or application for a declaration of invalidity has not yet elapsed, or if such a proceeding is pending, the court may,

(a) enforce the award; or

(b) order, on such conditions as are just, that enforcement of the award is stayed until the period has elapsed without such a proceeding being commenced, or until the pending proceeding is finally disposed of.

28That provision should be read in conjunction with s. 134(2) of the Courts of Justice Act, which grants the court the jurisdiction to" "make any interim order that is considered just to prevent prejudice to a party pending the appeal" (see: Jurewicz v. Jurewicz, 2015 ONSC 7563, at para 31).

Application of the RJR MacDonald Test to Parenting Cases

[29]

Application of the RJR MacDonald Test to Parenting Cases

The usual test for a stay of an order is the well known one enunciated by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), 1 S.C.R. 311 at para. 48: 1) serious issue, 2) irreparable harm and 3) balance of convenience.

30In applying the RJR MacDonald test, the court must be mindful that "[t]hese three criteria are not watertight compartments. The strength of one may compensate for the weakness of another. Generally, the court must decide whether the interests of justice call for a stay": Circuit World Corp. v. Lesperance (1997), 1997 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677, as cited in Spadacini-Kelava v. Kelava, 2021 ONCA 345, at para. 16. In parenting cases, the court must look at the three parts of the test holistically (Mudry v. Danisch, 2014 ONSC 4335 (Ont. Div. Ct.), at para. 166, G.(A.) v. B(J.), 2008 ABCA 61 at para. 12).

31Further, in a case that involves parenting, the overriding consideration, which arises in the context of the three-part test, is the best interests of the child. In order to grant a stay of the parenting provisions of the award, the court must be satisfied that a stay is in the best interests of the children: D.C. v. T.B., 2021 ONCA 562, at para. 9. It must look to "...whether the child's best interests require a stay for the, hopefully, short time necessary to afford the appellant the opportunity to have the decision reviewed." (Berry v. Berry, 2010 CarswellOnt 10983, at para. 6 (Ont. C.A. in chambers). But the overriding consideration must be the best interests of the child and whether a stay meets those best interests: D.C. v. T.B., above.

32Significant appellate deference is owed to parenting decisions by lower courts. This point was recently highlighted in Bors v. Bors, 2021 ONCA 513, where the Court of Appeal for Ontario stated:

18The determination of custody and access (now “parenting orders”) involves issues of mixed fact and law. As such, intervention on appeal is warranted only where there is a material error, a serious misapprehension of the evidence, or an error of law. As the Supreme Court has stated, “[c]ustody and access decisions are inherently exercises in discretion. Case by case consideration of the unique circumstances of each child is the hallmark of the process”: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13.

19As this court has reiterated many times, an appeal court must not retry parenting cases, but instead “approach the appeal with considerable respect for the task facing a trial judge in difficult family law cases, especially those involving custody and access issues”: C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, at para. 4.

20In A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, which was the appeal of an order reversing custody after a finding of parental alienation, Pardu J.A. articulated the standard of review. She stated, at para. 74:

Each case must be determined on its own specific facts. The trial judge hears from all the witnesses and as such, is in the best position to assess the child’s best interests. If there is no error in law, no palpable and overriding error of fact, and no misapprehension of evidence, appeal courts should not interfere.

33That deference applies even when a court is faced with an appeal of a temporary parenting order. As Zuber J. wrote for the Ontario Court of Appeal in Sypher v Sypher, 1986 6337 (ON CA), [1986] O.J. No. 536, 2 R.F.L. (3d) 413:

an appellate court should not interfere with an interim order unless it is demonstrated that the interim order is clearly wrong and exceeds the wide ambit of reasonable solutions that are available on a summary interim proceeding

34An additional consideration here that the parties agreed to utilize a mediation/arbitration process in order to resolve their parenting arrangements. Under the representation of capable counsel, they agreed to a process that does not mirror that of a court and which imposes added limitations on their rights to appeal. The point was made by the Court of Appeal for Ontario in Petersoo v. Petersoo, 2019 ONCA 624, where Benotto J.A. wrote for the court:

35Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts: see Patton-Casse v. Casse, 2012 ONCA 709, 298 O.A.C. 111 (Ont. C.A.), at paras. 9, 11.

[Emphasis added]

Serious Issue

[35]

Serious Issue

The first part of the RJR MacDonald test requires the court to make a preliminary assessment of the merits of the appeal in order to determine whether it presents a serious issue (RJR MacDonald at paras. 48 -49). The threshold for this test is a low one. It must not be "frivolous or vexatious" (RJR MacDonald at paras. 54-55). The issue is not whether the decision below will be upheld (Berry at para.6).

36Here, for leave to appeal to be granted, the court must be aware that Ms. Tsao’s award cannot be appealed on the basis of an alleged error of fact or mixed fact and law. Leave must be based on whether there is a serious issue as to whether there is an error of law in Ms. Tsao’s decision.

37The court must consider that issue within an understanding of the legislature’s intent to avoid making appeals of arbitration awards routine. As Benotto J.,A. wrote in Petersoo:

37Here the parties decided that an appeal would only be based on a question of law. As this court stated in Alectra Utilities Commission v. Solar Power Network Inc., 2019 ONCA 254 (Ont. C.A.), at para. 20:

The starting point in exercising the court's role under the Arbitration Act, 1991 is the recognition that appeals from private arbitration decisions are neither required nor routine.

Irreparable Harm

[38]

Irreparable Harm

The ordinary test for irreparable harm is "...whether a refusal to grant a stay would so adversely affect the applicant's own interest that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application." The term "irreparable" refers to the nature of the harm suffered rather than its magnitude. (RJR MacDonald, at paras. 62-3).

39Irreparable harm is "harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other": RJR - MacDonald, at p. 341.

40In Mudry v. Danisch, cited above, Sanderson J., citing G.(A.) v. B(J.), supra, wrote of the best interests link between the irreparable harm and balance of convenience elements of the test for a stay pending appeal. She stated that:

171 In custody and access cases, irreparable harm and the balance of convenience are inextricably linked and "distils into an analysis of whether the stay's issuance or denial would better serve, or cause less harm to, the child's interest". G. (A.) v. B. (J.), 2008 ABCA 61, 2008 CarswellAlta 191 (C.A.) at para. 12 where Justice Watson noted that "one has to look at the three parts of the test holistically, connecting irreparable harm with balance of convenience when little children are involved." Reeves v. Reeves, 2010 CarswellNS 39 (C.A.) at para. 21.

[Emphasis added]

41In Child and Family Services of Western Manitoba v. B.(K.), 2006 MBCA 48, the Manitoba Court of Appeal attenuated the test for irreparable harm in child protection cases. The test should be based on a risk of harm rather than a finding of harm itself. Writing for the court, Freedman J.A. stated:

In a child protection case, such as the present, I am not persuaded that the applicant for a stay must go so far as to establish that the child will suffer irreparable harm, if the stay is not granted. In civil litigation, irreparable harm may occur of damages are an inadequate remedy. That approach is not suitable when the best interests of children, potentially at risk of harm, are to be considered. To require that irreparable harm would be suffered would place an unrealistically high burden on the stay applicant, such as CFS. More importantly, it would make it difficult to give the child's best interests appropriate consideration. Where there are serious allegations of child abuse and inattention to a child's physical and emotional protective needs, as here, it is enough that the applicant for a stay establish that, on evidence, there is a reasonably perceivable risk that the child may suffer harm if the stay is not granted. The test designed for stays in the typical civil litigation case requires significant modification, before it is applied to a child protection case.

42As I wrote in Spadacini-Kelava v. Kelava, 2020 ONSC 3277 at para. 48:

Extrapolating from the B.(K.) case, it appears that the greater the concerns raised regarding a child's physical or emotional welfare in a stay application, the more that the issue of irreparable harm is subsumed into a best interests analysis. In that event, the moving party need only show "a reasonably perceivable risk that the child will suffer harm if the stay is not granted”.

Balance of Convenience

[43]

Balance of Convenience

In parenting cases, the balance of convenience stage of the analysis looks, not only to the harms that would be suffered by each party, but to the harm to children as well (Mudry v. Danisch, at para. 174). I would add that, while the interests of the parties must be considered, the best interests of the children must be the paramount consideration. Only that child-centred approach will recognize the centrality of best interests in all parenting decisions of the court.

Analysis

Genuine Issue for Trial

[44]

Analysis

In considering all of the factors set out above, I find that if there is a genuine issue in this appeal, it is barely discernable. The arbitration agreement limits appeals to issues of law only. Most of the mother’s arguments are centred on issues of fact or in the case of a best interests analysis, mixed fact and law.

45The most strongly discernable issue of law here is that argument that the mother’s procedural rights were violated because of a lack of notice that the father was seeking to terminate RAMP testing. However, it is hard to see that as a serious issue when five heads of relief in the father’s notice of motion repeats the words “ An Award that if the Arbitrator deems any testing necessary …” [emphasis added]. I fail to see how the issue of whether any RAMP testing was necessary could have been missed, even if there was no head of relief explicitly calling for the termination of RAMP testing. If those five heads of relief do not point to notice that the father was attempting to end RAMP testing, the mother fails to say how they should be interpreted.

46The mother says that the accumulation of alleged factual errors should be taken cumulatively as an error of law. She argues for a notion that ignores the tripartite nature of errors that may be differentially amenable to appellate review (i.e. errors of law, fact and mixed fact and law) in parenting cases. Her authority for this proposition appears to be the decision of the Supreme Court of Canada in Van de Perre v Edwards, 2001 SCC 60.

47The mother’s counsel writes in her factum for this motion that the Supreme Court “stated that the common standard of review thresholds, derived largely from civil cases, are ‘ill-suited’ to appeals regarding custodial issues.” She relies on the following passage from para. 12 of Van de Perre to make that pronouncement:

To have a child's future depend on whether an error of law has been shown in a trial judgment, or on whether the trial judge has committed a "palpable and overriding" error in fact-finding, instead of simply being wrong, seems contrary to the principle, which has been stated over and over again by Canadian courts, that the best interests of the child is the primary consideration. I have always understood that this was applicable to appellate as well as to trial courts.

48What that factum neglects to point out is that the quote from Van de Perre that it cites was a reference to the statement by the British Columbia Court of Appeal that the Supreme Court rejected, writing at para. 13:

13 As I have stated, the Court of Appeal was incorrect to imply that Hickey, supra, and the narrow scope of appellate review it advocates are not applicable to custodial determinations where the best interests of the child come into play. Its reasoning cannot be accepted. First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge's decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.

Irreparable Harm

[49]

Irreparable Harm

I agree that with the mother, in light of the case law, that the irreparable harm and balance of convenience arms of the test are not watertight compartments. Yet there is a virtue in considering each factor on its merits before coming to a global conclusion regarding whether a stay of the arbitrator’s award is in the best interest of the children.

50The mother’s most ardent argument is that the father’s drinking creates great risk for the children. The court should be maximally restrained before placing the children in danger by exposing them to the father’s drinking. The problem with this analysis is that they are contradicted by the arbitrator’s findings of fact, which are not subject to appellate review. The arbitrator was very clear in questioning the mother’s credibility regarding her claims regarding the father’s alleged alcohol abuse and mental health issues.

51Equally important, the evidence following the release of the first award simply does not support the mother’s claims. There is no evidence that the father has been impaired by alcohol when parenting the children since the first award was made.

52The mother’s key argument regarding risk is that the father failed to take 30 RAMP tests since the first award was made. She asks the court to assume that he was impaired each of those times. But mother’s counsel admitted that there were no actual days that he failed to take a RAMP test. During argument, we calculated that if he had taken every RAMP test scheduled, he would have taken 503 tests between the time of the two arbitration awards. He took 473 of them and never failed one. Further he never failed an Alcolock test. There were some tests that came in at .01 and two in which the Alcolock registered .02. I was provided with no expert evidence as to what those readings mean, other than the fact that he passed the test and his car started after he blew into the machine. Further, I cannot ignore the fact that the mother and her parents were entitled to drop in on the father during his parenting time for ten month, but made no claims that the father was impaired.

53I add two additional factors. First, the arbitrator made her second award about two months ago. That is two months without RAMP testing. I have been presented with no evidence of the father’s impairment with the children during that period. Second, the Alcolock device remains on the father’s car. It is to be utilized each time he uses it, whether or not he is with the children. That offers a real measure of security that the father is not drinking and more importantly, displaying the flawed judgment required for drinking and driving. The Alcolock device remains engaged even when the children are not in the father’s care.

54The mother’s rebuttal to that last point is that the father could walk with the children to return them to her home. It is a ten-minute walk. That is likely true in good weather. But unless the father intends to stop using his car, the Alcolock device remains a useful tool to assess his sobriety.

55In conclusion, I do not find a reasonably perceivable risk that the children will suffer harm if the stay is not granted.

Balance of Convenience

[56]

Balance of Convenience

The mother’s main argument regarding balance of convenience is that RAMP testing takes only two minutes and is minimally intrusive to the father. He need only find two minutes of privacy to conduct the testing. Of course, he has to do it fours times each day that he is with the children, and has to ensure that the children are safe and cared for when he does it. However, if there are four disruptions each day and the father has to organize his day in order to ensure that the tests are taken, that is more than the minimal disruption that the mother describes and wishes to continue to impose on the father. I say that, noting that she actually sought to increase the testing to five times per day.

57Nonetheless, all of that RAMP testing would be appropriate and meet the balance of convenience test if there were reason to believe that the father had abused alcohol while caring for the children since the first award. But that is contrary to the arbitrator’s findings of fact. Further, the arbitrator found that the intrusions into the father’s life that the mother wishes to continue are not in the children’s best interests. That finding is one of mixed fact and law and not subject to appeal.

58Counsel for the mother raises a further argument, relying on Watt v. Howe, 2016 ONSC 7405 (Ont. Div. Ct.), that in a stay motion the court should be loathe to change a long-standing parenting arrangement pending appeal. However, in that case, the long-standing arrangement had been in effect for over four years. Here it had been in effect for less than ten months, under an award that was intended to be reviewed after only two or three months.

59Further, Aitkin J. did not state in Watt v. Howe that she was applying a rule of general application regarding stays of parenting decisions pending appeal. Rather she was speaking to the particular facts of the case before her.

Conclusion

[60]

Conclusion

For the reasons set out above, I dismiss this motion. Even if this case meets the low bar of serious issue (which I have reason to doubt), the mother has proven neither irreparable harm nor that the balance of convenience favours her position. In short, I do not find that a stay is in the best interests of the children

Costs

[61]

Costs

The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Applicant may submit his costs submissions of up to three pages, double spaced, one inch margins, plus and bill of costs/costs outline and offers to settle within 14 days of release of this endorsement. He need not include the authorities upon which he relies so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Respondent may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and make no costs order.

Time to Perfect Mother’s Leave to Appeal Motion

[62]

Time to Perfect Mother’s Leave to Appeal Motion

The parties have agreed that Ms. McCarthy will perfect her motion for leave to appeal by August 6, 2021. I so order.