Court File and Parties
Court File No.: FS-21-26166 Date: 2021-10-26 Ontario Superior Court of Justice
Between:
Corinne Samama Applicant/Respondent on Appeal
– and –
Joe Gaskovski Respondent/Appellant
Counsel: Jared Moldaver and Stephanie Yuen, for the Applicant Vanessa Lam, As Agent for the Respondent
Heard: October 25, 2021
Endorsement on Motion for Stay Pending Appeal
P.J. Monahan J.
[1] The parties could not agree on which school their 12-year-old daughter, KGS, should attend for the 2021-2022 school year. The Applicant wanted KGS to attend Le College Francais (“LCF”) while the Respondent wanted KGS to attend the Waterfront School (“Waterfront”). Accordingly, in August 2021 the Applicant brought an urgent motion in the Ontario Court of Justice seeking an order that KGS attend LCF. The urgent motion was heard by a justice of the OCJ on September 2, 2021.
[2] On September 3, 2021, the motions judge ordered KGS to attend Waterfront for the 2021-22 school year (the “Initial Order”). Accordingly, on September 7, 2021 KGS began attending grade 7 at Waterfront.
[3] On September 28, 2021, the motions judge made a telephone call to counsel for the Applicant. (Although there is no direct evidence as to what was said on this or a subsequent telephone call, the Applicant has filed an affidavit setting out an account of the calls provided by her counsel.) The motions judge asked counsel for the Applicant to submit a Bill of Costs for the urgent motion. Later that day counsel provided the requested Bill of Costs. However, no notice was given to the Respondent of this telephone call or of the fact that the Applicant had submitted a Bill of Costs directly to the motions judge.
[4] On October 1, 2021, the motions judge made a second telephone call to counsel for the Applicant. In this call, the motions judge advised counsel of the following:
a. due either to a shortage of staff and/or an administrative error, the motions judge did not have hard copies of all of the materials submitted on the motion and she had failed to consider all of the evidence in making the Initial Order. The motions judge had only learned of this error when she was preparing her costs decision.
b. The motions judge stated that she had issued a new order (the “Stay Order”) staying the Initial Order, dated October 1, 2021;
c. after having considered all of the evidence submitted on the urgent motion, the motions judge had decided to issue a third order (the “Third Order”) directing that KGS be immediately enrolled in LCF for the 2021 – 2022 school year;
d. the Third Order was to be released on October 4, 2021, but the motions judge expressly asked counsel for the Applicant to immediately advise her client of this pending development, so that the Applicant could contact LCF and inquire as to whether KGS could immediately transition to LCF for the current school year;
e. because the Applicant was the successful party in respect of the Third Order, the motions judge advised her counsel that costs would be ordered against the Respondent (the “Costs Order”). The Costs Order would also be released on October 4, 2021.
[5] The Motions judge proceeded to issue the Stay Order, the Third Order and the Costs Order (collectively, the “New Orders”).
[6] In the Stay Order, the motions judge stated that, through no fault of either party or counsel, she had failed to consider all of the evidence that had been filed with the court on the urgent motion. The motions judge indicated that when she turned her attention to the issue of costs, she realized that she had ignored evidence that ought to have been part of her original decision-making. As a result of what the motions judge described as this “faux pas”, the Initial Order was “in serious error”, “wrong” and “deeply flawed”; accordingly, the Initial Order must be stayed. The motions judge proceeded to explain why she was now of the view that KGS should attend LCF rather than Waterfront, which was why she was issuing the Third Order. She also ordered the Respondent to pay costs to the Applicant on a full indemnity basis in the amount of $14,849.12.
[7] The New Orders were duly received by the Respondent. However, it appears that the court had an incorrect email address for Applicant’s counsel, such that the Applicant did not receive the New Orders until October 12, 2021. In the meantime, on October 8, 2021, the Respondent had served and filed a Notice of Appeal of the New Orders, as well as a motion to stay those Orders pending hearing of the appeal.
[8] The Applicant decided to transition KGS from Waterfront to LCF on October 18, 2021. KGS has been attending LCF since that date.
Respondent’s Motion
[9] On this motion, the Respondent seeks an order staying the New Orders pending the appeal, along with an order that until such time as the appeal is heard, KGS should attend Waterfront in accordance with the Initial Order.
[10] At the conclusion of the hearing on October 25, 2021, I granted the relief sought by the Respondent, with written reasons to follow. These are my reasons.
Test for Stay Pending Appeal in Parenting Cases
[11] There is no dispute with respect to the legal test applicable on this motion. In appeals involving custody and access matters, the three-part test for a motion to stay pending appeal is formulated as follows:[^1]
i. whether, on a preliminary assessment, the appeal raises a serious question to be tried;
ii. whether the child will suffer irreparable harm if a stay is refused; and
iii. the balance of convenience, namely, whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal.
[12] The overriding consideration in parenting cases is the best interests of the child. The court must be satisfied that it is in the child’s best interests to grant a stay.[^2] Moreover, the onus is on the moving party to demonstrate that the stay of the original order pending appeal should be granted.
[13] The standard for appellate review of a custody or parenting decision is exacting. The function of the reviewing court is not to retry the case on appeal. Intervention is warranted only if there is a material error, a serious apprehension of the evidence, or an error of law. It should also be noted that although all three parts of the test for a stay must be satisfied, the three criteria are not watertight compartments and the strength of one may compensate for the weakness of another.[^3]
[14] The Applicant says that if the stay of the New Orders is granted and KGS is required to return to Waterdown, this will effectively decide the appeal. This is because, regardless of the outcome of the appeal, it will then be too late for KGS to return to LCF this school year.
[15] Where, as a practical matter, the rights of the parties are likely to be determined by the stay motion, the court may give significantly more weight to the strength of the appeal. In these circumstances the applicant for a stay is required to show that there is a “strong likelihood that the appeal will succeed” as opposed to the minimal “serious issue to be tried” component of the test.[^4]
[16] There is limited evidence as to whether it will be possible for KGS to return to LCF at some later point in the year following the hearing of the appeal. Nevertheless, for purposes of this motion, I assume that KGS will have a limited opportunity to return to LCF later this school year if she goes back to Waterfront. I therefore find that the Respondent is required to show, under the first prong of the three-part stay test, that there is a strong likelihood that the appeal will succeed.
Is there a strong likelihood that the Appeal will succeed?
[17] In considering this issue, I begin with the observation that in issuing the New Orders the motions judge appears to have committed three independent and serious errors of law which call into question her jurisdiction to make these Orders, as well as the manner in which any such jurisdiction as might have existed was exercised.
[18] These three errors of law are as follows:
i. There was no apparent authority for the motions judge to issue the New orders
[19] The Family Law Rules as well as the Rules of Civil Procedure define the limited circumstances in which a judge of the OCJ may set aside or vary a court order.
[20] Rule 25(19) of the Family Law Rules provides that an order may be “changed” (which includes setting it aside) if, inter alia, it was obtained by fraud, where it “contains a mistake”, or where the order “needs to be changed to deal with a matter that was before the court but that it did not decide.”[^5] A court order contains a “mistake” only where it contains a typographical error, a misstatement of what was actually endorsed by the court, or where it does not correctly reflect the common intention of the parties.[^6]
[21] The relatively limited scope of Rule 25 (19) is appropriate and necessary given the need for finality and certainly in family law litigation. To be sure, a party who is dissatisfied with a court order may undertake an appeal in the normal course. But absent an appeal or the limited circumstances provided for in Rule 25 (19), parties are entitled to proceed on the basis that a court order is binding and may be relied upon.
[22] While the motions judge conceded that there was a serious error in her Initial Order, this did not result from a typographical error or a misstatement of what was actually endorsed by the court. Rather it was a result of the motions judge having failed to properly consider all of the evidence that had been duly filed on the motion. When she later reviewed the evidence in the course of preparing her costs order, she changed her mind as to the appropriate result. While it was clearly a mistake for the motions judge to fail to consider all the evidence in making the Initial Order, this it does not constitute the type of “mistake” that gives rise to jurisdiction to vary or set aside an order pursuant to Rule 25 (19).
[23] Rule 59.06 of the Rules of Civil Procedure provides that an order that “contains an error arising from an accidental slip or omission or requires amendment in any particular in which the court did not adjudicate” may be amended on a motion. This Rule also provides that an order may be set aside or varied on the ground of “facts arising or discovered after it was made”. It is obvious that none of these circumstances arises in this case.
[24] The Applicant points out that no formal order was taken out following the issuance of the “Decision” on September 3, 2021. Her counsel relies on certain cases that have said that a Superior Court judge has inherent authority to change an order that has not yet been signed and entered.[^7] However, as Justice Nordheimer (as he then was) makes plain in Brown, any such change can only be made if it is either technical (e.g. to correct an arithmetic error) or it is necessary to avoid a miscarriage of justice.[^8]
[25] Even assuming that the motions judge possessed such inherent authority to vary her order prior to a formal order being issued, the New Orders issued by the motions judge on October 1 and 4, 2021 do not fall even remotely within the parameters set down by Nordheimer J. in Brown. As Nordheimer J. pointed out, the mere fact that the technical requirements for the finality of an order are missing because the order was not signed and entered does not permit a judge to vary that order in whatever manner the judge happens to consider to be appropriate at a later date.
[26] The motions judge also was clearly of the view that the Initial Decision was operative as an order, regardless of whether it was subsequently incorporated into a formal Order. It was for that reason the she stayed the Initial Order, rather than simply varying or changing it. I would also point out that the motions judge did in fact sign a formal order on September 3, 2021, striking out the substantive relief that was sought by the Applicant in her urgent motion.
[27] I therefore conclude that there was no apparent authority for the motions judge to have issued the New Orders, which appear to have been void ab initio.
ii. The New Orders appear to have been issued in breach of the principles of natural justice.
[28] It is a basic principle of fairness and natural justice that parties must be given a full opportunity to be heard prior to a court making a decision affecting their rights. This audi alteram partem rule includes both the right to receive sufficient notice of the hearing, as well as the right to make submissions in advance of any decision being made.[^9] A violation of the principles of natural justice is a jurisdictional error.
[29] In this case, the motions judge did not provide either party with the opportunity to make submissions before she issued the New Orders. Moreover, apart from first principles, it is apparent that it would have been in KGS’s interests for such submissions to have been made. It was now a month into the school year. As such, it was not entirely clear whether KGS remained in a position to commence schooling at LCF. This uncertainty was presumably the reason why the motions judge contacted counsel for the Applicant on October 1, 2021, and instructed counsel to advise the Applicant that the latter should immediately reach out to LCF to see if KGS could still be registered there for this school year. Despite the fact that she lacked this important information about KGS’s current circumstances, the motions judge was nevertheless prepared to order KGS to begin attending LCF immediately without hearing from the parties.
[30] In short, the motions judge appears to have issued the New Orders in violation of basic principles of natural justice, thereby vitiating any jurisdiction she may have had to make the Orders.
iii. The two telephone calls from the motions judge to Applicant’s counsel raise concerns over reasonable apprehension of bias.
[31] As the Supreme Court of Canada held in Canada (Minister of Citizenship and Immigration) v. Tobiass, a judge should not discuss a particular case with counsel for one party except with the knowledge and participation of the other parties to the case.[^10] A violation of this rule undermines the appearance of the judge’s independence and impartiality and may give rise to a reasonable apprehension of bias.
[32] In this case, the motions judge made two separate telephone calls to counsel for the Applicant. Neither call was disclosed to the Respondent prior to the release of the New Orders, nor was any reference made to these communications in any of the motions judge’s endorsements or orders. Had the Respondent not elected to appeal, it is unlikely that any of these communications would have ever come to light.
[33] Of particular concern is the second call on October 1, 2021 in which the motions judge appears to have been attempting to provide advance notice of the release of the New Orders to the Applicant so that she could act immediately on the New Orders before they were in the hands of the Respondent. In my view, a well-informed and reasonable observer could well conclude that the motions judge was attempting to assist one party to the case without the knowledge of the other, thereby giving rise to the appearance of a lack of the requisite independence and impartiality.
[34] It is important not only that justice be done impartially, but that it be seen to be done in such a manner. The telephone calls from the motions judge to Applicant’s counsel appear to be inconsistent with such a requirement. Such a finding mean that the motions judge should not have any further dealings with the case, which would obviously include not issuing any further orders.[^11]
iv. Conclusion: There is a Strong Likelihood that the Appeal will succeed
[35] Given the seriousness of these legal errors, all of whether go to jurisdiction, I conclude that there is a strong likelihood that the Respondent’s appeal will succeed when it is argued on the merits.
Irreparable Harm to KGS from refusal of Stay
[36] In considering whether KGS will suffer irreparable harm if the stay is not granted, I note that up until this past Monday, October 18, she had been attending Waterfront. In contrast, she has been attending LCF for a total of just six days.
[37] Although I will direct that this appeal be heard on an expedited basis, it will obviously be some period of time before the appeal can be heard. If, in the interim KGS continues to attend LCF but the Respondent’s appeal is subsequently allowed (as I expect it will be), the Initial Order will then come back into effect and KGS will at that point be required to return to Waterfront. The problem is that by that time KGS would have missed at least a number of weeks, if not more, of attendance at Waterfront. Moreover, even at that point, there would be no certainty as to where KGS would spend the rest of the school year, since presumably there would then need to be a further hearing in the OCJ in front of a new judge to determine that issue.
[38] This would clearly cause substantial and ongoing harm to KGS. It would mean that she would have started the school year at Waterfront studying in English, transitioned to LCF for some substantial period of time where she studied in French, only to be ordered to return to Waterfront. Such a revolving door scenario might put KGS so far back in her studies as to call into question her ability to complete grade seven by June 2022. This in my view would qualify as irreparable harm to KGS.
[39] In contrast, if the stay is granted and she returns to Waterfront now, she can continue the studies she commenced on September 7, 2021 with minimal interruption. Once the appeal has been heard and determined, the court can at that time receive submissions as to what schooling arrangements are in KGS’s best interests for the balance of the year.
[40] I conclude that there is a significant likelihood that KGS will suffer irreparable harm if the stay is not granted. The Respondent has met his burden on this prong of the stay test.
Balance of Convenience Favours KGS Returning to Waterfront Pending Appeal
[41] For similar reasons, the balance of convenience favours KGS returning to Waterfront while the appeal is heard. Recognizing the significant disruption and uncertainty that has already been caused to KGS and this family by the actions of the motions judge, this is the least disruptive option for KGS going forward. Once the appeal is determined the court can then assess what is in KGS’s best interest.
Overall Assessment of KGS’s Best Interests
[42] The consideration of the three-part test for a stay, particularly in parenting and custody cases, must be approached in a holistic manner rather than as a mechanical exercise. The paramount consideration is whether the moving party has shown that granting the stay would be in the child’s best interests.
[43] In my view, KGS’s overriding interest at this time is for certainty and stability. Given the analysis set out above, particularly the strong likelihood that the New Orders will be overturned on appeal, that certainty can best be achieved by having KGS return to Waterfront pending the appeal. Once the appeal has been resolved, the court and the parties can turn to an assessment of the circumstances then prevailing in order to determine how best to move forward.
[44] I therefore find that Respondent has met his burden, that the New Orders should be stayed pending appeal or further court order, and that KGS should return to Waterfront effective October 26, 2021.
Disposition
[45] I order that the New Orders be stayed pending the hearing of the Respondent’s appeal or further court order. Effective October 26, 2021, until further court order or agreement of the parties, KGS will resume grade 7 at Waterfront, in accordance with the terms of the Initial Order. I also order that the Respondent’s appeal of the New Orders be expedited and heard as soon as possible.
[46] At the conclusion of the hearing, I received oral costs submissions from the parties. The Respondent is the successful party and is presumptively entitled to his costs. I assess those costs to be $3500, inclusive of HST and disbursements, and order that the Applicant pay that amount within 90 days.
P. J. Monahan J.
Released: October 26, 2021
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Corinne Samama Applicant/Respondent on Appeal
– and –
Joe Gaskovski Respondent/Appellant
ENDORSEMENT ON MOTION FOR STAY PENDING APPEAL
P.J. Monahan J.
Released: October 26, 2021
[^1]: See generally, D.C. v T.B., 2021 ONCA 562 (”D.C. v. T.B.”), at paras 9-10. [^2]: D.C. v. T.B.; K.K. v. M.M. 2021 ONCA 407, at para 17. [^3]: Mudry v. Danisch, 2014 ONSC 435 (Div. Crt), at para. 166. [^4]: Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, at paras 10 and 20 [^5]: See Rule 25 (19) (a), (b) and (c), respectively. There are other subsections of Rule 25 (19) but they have no relevance to the circumstances of this case. [^6]: See generally Grey v. Rizzi, 2010 ONSC 2858, affirmed 2011 ONCA 436; Henderson v. Henderson, 2015 ONSC 2914 at paras 84 to 102; Sarrafian v. Leksikova, 2021 ONSC 2838, at paras 37-38, 45. [^7]: Brown v. The Municipal Property Assessment Corporation, 2014 ONSC 7137 (Div. Crt) (“Brown”), at para 18. [^8]: Brown at para 20. [^9]: Ontario (Provincial Police) v. Mosher, 2015 ONCA 722, at paras 60 to 63. [^10]: Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 SCR 391, at para. 74. [^11]: Tobiass, at para. 104.