COURT FILE NO.: FS-22-0189-00
DATE: 2022-10-18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tanja Natasha Majcen v. Joseph Ryan Nelson
HEARD: October 13, 2022
BEFORE: Nieckarz J.
COUNSEL: Ms. Majcen, self-rep, for the Applicant Mr. Nelson, self-rep, for the Respondent
E N D O R S E M E N T
Overview:
[1] This proceeding involves an appeal from the Order of MacKinnon J., of the Ontario Court of Justice, dated August 10, 2022 (“Order”). The Order deals with various issues related to the parenting and support of the parties’ two-year-old daughter.
[2] The Order was made following a three-day trial in which both parties were represented by counsel.
[3] The parties had been in a dating relationship and had not lived together during Ms. Majcen’s pregnancy or following the child’s birth.
[4] Prior to the Order, Ms. Majcen had primary care of the child, while Mr. Nelson exercised parenting time. Ms. Majcen sought to relocate from Ontario to British Columbia where she felt her job prospects were better. Parenting and Ms. Majcen’s income for support purposes were hotly contested issues at trial.
[5] For reasons released on August 10, 2022 (the “Reasons”), Justice MacKinnon determined that it was not in the child’s best interests to relocate from Ontario. She further determined that unless Ms. Majcen is living in Sault Ste. Marie, it was in the child’s best interests to live in the primary care of Mr. Nelson. If Ms. Majcen is living in Sault Ste. Marie, then parenting time was to be shared. Mr. Nelson was awarded sole decision-making responsibility.
[6] For child support purposes, an income was imputed to Ms. Majcen of $50,000 annually. Based on the shared parenting regime of the Order, after set-off, this results in Ms. Majcen owing Mr. Nelson a net child support payment in the amount of $102 per month.
[7] Ms. Majcen has appealed the Order. She alleges numerous errors in law with respect to the parenting and support provisions of the Order. At the risk of oversimplifying Ms. Majcen’s arguments, her position is that Justice MacKinnon erred in law in failing to properly consider various factors related to the best interests of the child, including the status quo, and placed too much emphasis on other factors such as stability. With respect to support, Ms. Majcen argues that the imputation of income is an error based on the law and facts of the case, as she is incapable of earning the income imputed to her while living in Sault Ste. Marie.
[8] Ms. Majcen has brought two motions before the court today:
a. A motion to vary the child support provisions of the Order; and
b. A motion to stay the Order pending the outcome of the appeal, and for directions with respect to the ordering of transcripts.
[9] Mr. Nelson contests both motions, one of which was short served on him.
[10] At the hearing of the motions, I indicated to the parties that I would give them a decision and reasons for the decision on the motions quickly. For that reason, these reasons are brief. I have considered the materials filed by the parties and all the arguments made by them, even if they are not specifically referred to in this decision.
Motion to Vary:
[11] I agree with Mr. Nelson that the motion to vary is not an appropriate motion within the context of this appeal. No Motion to Change has been commenced (see Rule 15 of the Family Law Rules). Ms. Majcen should also obtain some legal advice as to the proper court and forum for a motion to change given that both parties and the child now live in Sault Ste. Marie.
[12] The motion to vary is dismissed.
Motion to Stay:
[13] The motion to stay is properly before me. Despite the short service on Mr. Nelson, he filed responding materials and made submissions. He did not seek an adjournment.
[14] Parenting orders remain in effect pending an appeal unless this court orders otherwise.
[15] In determining whether to stay an order involving the parenting of a child, the courts must consider:
a. whether, on a preliminary assessment, the appeal raises a serious question (recognizing that this is a low threshold);
b. whether the child will suffer irreparable harm if a stay is refused; and
c. 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.
D.C. v. T.B., 2021 ONCA 562, at para. 9.
[16] The overriding consideration is the best interests of the child. In other words, the court must be satisfied that it is in the child’s best interests to grant a stay: K.K. v. M.M., 2021 ONCA 407, at para. 17 and Lefebvre v. Lefebvre, 2002 17966 (ON CA), 167 O.A.C. 85 (C.A.), at para. 6.
[17] The function of a court that is faced with an appeal is not to retry the case on appeal. Intervention is warranted only if there is a material error, a serious misapprehension of the evidence, or an error of law.
[18] Ms. Majcen argues that there are a number of errors in the trial judge’s decision, and accordingly the appeal raises a serious issue. Among other arguments, she asserts that the trial judge erred in not properly considering all necessary factors in determining the best interests of the child. Ms. Majcen argues that the trial judge placed too much weight on historic communications with Mr. Nelson and her history of relocation since the birth of the child, and insufficient weight on her role as primary caregiver and the instability this would cause the child to disrupt. With respect to support, Ms. Majcen argues that income was imputed to her incorrectly based on the evidence at trial and the law. She also argues that there is fresh evidence that will be required at the appeal as to her ability to earn the income imputed to her, as the order made was not contemplated by the evidence and positions at trial, and this evidence is relevant.
[19] Ms. Majcen’s argument about irreparable harm if the parenting aspects of the Order are not stayed, focuses on the effect of the child’s separation from her as the parent who was previously the primary caregiver. She expresses concern over Mr. Nelson’s alleged confrontational attitude that increases conflict that the child is exposed to, as well as the childcare arrangements made by him when he is working. Overall, she argues that the order appealed from is contrary to the best interests of the child, and that irreparable harm will ensue to the emotional well-being of the child if the order is not immediately stayed.
[20] Mr. Nelson argues that the appeal lacks merit, but even if there were some arguable merit to the appeal, that a stay is not in the best interests of the child, who is doing well under the current order. He argues that the child has adjusted well to the current order, and that she is happy. Mr. Nelson points to the disruption to the child’s routine if a stay were granted and the mother were to lose her appeal.
[21] I am not persuaded that a stay of the final order pending appeal is necessary in the best interests of the child. The reasons of the trial judge are comprehensive and reveal no obvious error when read as a whole. The grounds of appeal may be arguable, but I do not have an evidentiary record (i.e. transcript) that assists me in evaluating the strength of many of the arguments made. The trial judge was clearly aware that Ms. Majcen was the primary caregiver for the child and had been primarily responsible for decision-making for the child. After hearing the evidence of the parties and considering different aspects of the best interests of the child test, the trial judge concluded that different parenting arrangements were in the child’s best interests. One such arrangement preserved an active roll by Ms. Majcen in the day-to-day care of the child by providing for shared time if Ms. Majcen committed to living in Sault Ste. Marie. She has done this.
[22] What Ms. Majcen is seeking is a return to the status quo before the final order was made. She seeks to have the child return to live with her full-time, subject to parenting time with Mr. Nelson. She seeks decision-making authority. I have no doubt that the Order came as a shock to Ms. Majcen. As she stated at the hearing of the stay request, ‘she went to court to get child support and lost custody of her child’. I also have no doubt that the new parenting arrangements have been an adjustment for the child, who previously lived primarily with her mother. However, Ms. Majcen has made the move to Sault Ste. Marie and there is no indication in the materials before me that the child has not adjusted well to the current arrangement. I am loathe to return her to the previous arrangement, only to run the risk of her once again having to readjust to shared parenting if the appeal is unsuccessful. Since there is no evidence of significant harm or risk of harm to the child as a result of the order, and there is evidence (orally) from Mr. Nelson that she is doing well, to stay the order under appeal could be highly disruptive and contrary to the best interests of a child, who Justice MacKinnon found required stability.
[23] With respect to child support, Justice MacKinnon imputed an income to Ms. Majcen of $50,000 annually, based on the following:
a. Despite not having worked in the field for years, Ms. Majcen has the skills to work as a dental hygienist. She is not currently working as a hygienist because of her own action in resigning from the College of Dental Hygienists in Ontario.
b. Ms. Majcen’s evidence at trial was that it will take 3 months and between $1,500 – 2,000 to be reinstated as a member of the College.
c. Even without this qualification, Ms. Majcen is able to work as a dental assistant for approximately $40,000 less than what she can earn as a hygienist in British Columbia, which gives her income earning potential of $60,000 per annum.
d. It is possible that Ms. Majcen could earn less than the $60,000.
[24] Based on an imputed income for Ms. Majcen of $50,000, an income of $39,996 for Mr. Nelson, and using a set-off approach to determining child support in a shared parenting arrangement, it was ordered that Ms. Majcen pay to Mr. Nelson net monthly support of $102.25 commencing October 1, 2022. Support may be adjusted annually, but not based on an income below $50,000 for Ms. Majcen, unless agreed to by the parties or ordered by a court.
[25] Ms. Majcen argues that Justice MacKinnon did not consider that it is impossible for her to work as either a dental assistant or hygienist in Sault Ste. Marie, and therefore impossible for her to earn $50,000. Verbally (this was not in her affidavit evidence on the stay or variation motions), Ms. Majcen stated that some time ago she assisted another hygienist in Sault Ste. Marie in attempting to get all local dental workers into a union. Their attempts at unionizing were unsuccessful and she has effectively been blackballed by all local dental offices ever since. This is the reason she had not worked in a dental office in Sault Ste. Marie for years prior to the birth of the child and was working as a nanny. Ms. Majcen acknowledges that this was not in evidence before Justice MacKinnon, as the scenario the parties are currently living was not contemplated by Ms. Majcen. At the time of trial, she was living in Thunder Bay and contemplating a move to British Columbia. She has now been forced to return to Sault Ste. Marie in order to have shared parenting of her child.
[26] Again, it is difficult for me to evaluate the merit of this basis for appeal without seeing the transcript from the trial and the scenarios and evidence presented. Both parties relied heavily at the hearing of the stay motion on oral, unsworn evidence. They will not be able to do this at the hearing of the appeal. There may be some merit to this ground for appeal, but:
a. It will require an amendment of the Notice of Appeal to specifically state this as a basis for the appeal of the child support order; and
b. Will likely require a fresh evidence motion.
[27] With respect to the issue of harm, the evidence before me as to harm to either party if the order is either stayed or not stayed is sparse. Ms. Majcen has indicated in her affidavit that she has suffered devastating financial hardship as a result of the court proceedings that required her to relocate further, but there is no evidence as to her current employment or other circumstances. Verbally at the hearing of the stay motion she indicated that she is not working and is struggling financially. Mr. Nelson is working. The parties are sharing care of the child. The Mother’s financial resources are currently limited, which could impact her ability to properly provide for the child. There is no evidence of any detriment to Mr. Nelson, or his ability to provide for the child if he does not receive the $102.25 per month in child support. Ms. Majcen will also have considerable expense associated with ordering the transcripts for the appeal. The balance of convenience favours staying the payment of support pursuant to paragraph 8 of the Order pending the outcome of the appeal.
[28] Ms. Majcen should be aware that if she is unsuccessful in her appeal of the child support provisions of the Order, she will then have to pay the child support that accrued from October 1st, 2022, under the terms of the Order.
Transcripts:
[29] The parties sought directions with respect to the transcripts required for the proceeding. Mr. Nelson’s position is that only the transcript from Day 1 of the trial is required. Ms. Majcen is uncertain as to what is necessary but feels that if there is a transcript of her evidence from Day 1, then there should be a transcript of Mr. Nelson’s evidence also.
[30] Currently it is difficult to fully appreciate the nature of Ms. Majcen’s grounds for appeal based on the Notice of Appeal as served and filed. Her arguments became clearer at the oral hearing of this motion. She should give consideration to amending her Notice of Appeal to be clearer in this regard and bringing a motion for fresh evidence. She should pay particular attention to Rule 38(11), which prohibits the arguing, at the appeal, of grounds for the appeal other than the ones stated in the notice of appeal without permission of the court. Both parties would be well-served by seeking legal advice. The appeal process and procedures are complex.
[31] With respect to transcripts, if one of the arguments of Ms. Majcen is that the trial judge misunderstood the evidence and/or misapplied the evidence to the law, unless the parties can agree as to what that evidence is, a transcript of the entire trial is advisable.
[32] Rule 38(15) of the Family Law Rules requires the appellant to order a transcript of all the oral evidence from the hearing of the decision under appeal unless the parties agree otherwise or the court orders otherwise. The parties do not agree and given the materials before me at this time, I am not inclined to order otherwise.
[33] I am inclined to extend the time for the filing of the transcript. Ms. Majcen has not yet ordered it pending the outcome of this motion and the time for filing it will have expired as of the date of release of this decision. Sufficient time should be permitted to avoid the added cost of expedited transcripts.
Order:
[34] The motion to vary is dismissed.
[35] The payment of child support pursuant to paragraph 8 of the Order is stayed pending the outcome of the appeal.
[36] Ms. Majcen shall obtain a certificate of stay under Rule 38(41) of the Family Law Rules and file it immediately in the office of the Director of the Family Responsibility Office of the support order is being enforced by the Director.
[37] The time for Ms. Majcen to file a transcript of evidence from the trial is extended by 30 days.
DATE: October 18, 2022
COURT FILE NO.: FS-22-0189-00
DATE: 2022-10-18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tanja Natasha Majcen v, Joseph Ryan Nelson
BEFORE: Nieckarz, J.
COUNSEL: Ms. Majcen, self-rep, for the Applicant
Ms. Nelson, self-rep, for the Respondent
ENDORSEMENT
Nieckarz J.
DATE: October 18, 2022