COURT FILE NO.: FS-22-134 DATE: 2024 02 13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

MYRDA, Krzysztof Appellant Marek Tufman, for the Applicant

- and -

KAJKO, Monika Respondent Marek Balinski, for the Respondent

HEARD: Dec 18, 2023 In-Person

REASONS FOR DECISION – APPEAL OF OCJ FINAL ORDER

MCSWEENEY J.

[1] The Appellant father Mr. Myrda appeals the relocation and decision-making portions of the final order of Justice Parent of September 20, 2022 (“Final Order”). He asks the Court to overturn the trial judge’s decision on these issues, and to award him decision-making and primary residence of the parties’ daughter, whom I shall refer to as “K” to protect her privacy. K was born in October 2020.

[2] This trial was heard in the Ontario Court of Justice (OCJ) over 6 days between August 15 and 22, 2022.

[3] Justice Parent’s 62-page judgment was released September 20, 2022. She granted primary residence and sole decision-making for K, then aged two, to the Respondent mother, Ms. Kajko. She ordered the Appellant father to pay a lump sum for spousal and retroactive child support. She also ordered him to pay monthly child support going forward.

[4] In her decision, Justice Parent found the Respondent mother to be the primary caregiver of K since birth. She accepted the mother’s evidence that she had a job in her home community of Stare Guty, Poland, as well as housing, family and community support there.

[5] Mother and child had been living in a women’s shelter since June 2022. Parent J. found that mother could be deported from Canada at any time, and granted mother’s request to relocate with K to her home community of Stare Guty, Poland.

Timing of appeal:

[6] There was a delay in scheduling the appeal hearing. The appeal timeline was not set by this Court until June 2023 due to delay by parties in obtaining the transcript. On June 19, 2023, McGee J. ordered the appeal to be perfected by July 31, 2023, with responding materials due October 2, 2023.

[7] The appeal was heard December 18, 2023.

Brief background facts found by trial judge:

[8] Re references to the parties: At trial, the mother was the Applicant and the father was the Respondent. On this appeal, the father is the Appellant and it is mother who is now called the Respondent. In order to avoid confusion, I will for clarity refer to the parties as “mother” and “father” or as “Appellant father” and “Respondent mother”.

[9] The Appellant father was born in Poland and emigrated to Canada many years ago with his family. He is a Canadian and Polish citizen.

[10] The Respondent mother is a Polish citizen. She came to Canada on a work permit for a job in a cannabis facility in northern Ontario. Prior to meeting the Appellant father, she had been self-supporting. She returned home to Poland for the seasons between periods of work in the Ontario cannabis facility.

[11] The parties had a short relationship between 2019 and 2021. The father asked the mother to move in with him. She did so.

[12] The mother lost her work permit when she moved in with the father and was no longer self-supporting.

[13] Their daughter K was born in October 2020.

[14] During their relationship, the parties discussed the father sponsoring the mother to immigrate to Canada. Some paperwork was commenced by the mother. Ultimately, the father did not sponsor the mother.

No Fresh Evidence:

[15] The father’s grounds of appeal allege various errors by the trial judge as considered below.

[16] At the appeal, neither party had filed nor sought leave to adduce any fresh evidence.

[17] During the appeal submissions, both counsel sought to give me information about the current situation of the parties. With no motion to admit fresh evidence, and no affidavits before the court, I advised counsel that the court could take judicial notice only of agreed facts by way of update to the court.

[18] Counsel agreed with the following procedural update. Accordingly, as of December 18, 2023, the following are facts found for the purposes of this appeal:

a) The father did not move to stay the Final Order after Justice Parent released her trial decision;

b) The mother has not yet been deported, and remains living in the women’s shelter with K;

c) K continues to have parenting time with the father;

d) The father has not appealed, nor has he paid, any part of the lump sum of $17,544.00 ordered by Parent J. at para. 15 of the Final Order.

e) The father has been paying the $700 monthly child support payable per para. 11 of the Final Order;

f) Although the Final Order refers to FRO enforcement, no Support Deduction Order was issued with the Final Order. There has therefore been no FRO support enforcement to date;

g) K turned 3 years old in October 2023.

Grounds of appeal:

[19] There was no use of a transcript at the appeal hearing. Although trial transcripts were uploaded to Caselines, no hyperlinks or pinpoint references to any evidence were included in either party’s factum as required in the practice directions of the Superior Court. This was not an impediment to an efficient appeal hearing, however, as neither Appellant nor Respondent counsel referred the court to any part of the transcript during their submissions.

[20] All arguments regarding errors by the trial judge, or in defence of the sufficiency of her decision, were based on the trial decision alone.

[21] The father had originally listed eight grounds in his Notice of Appeal:

a. general assertions that the trial judge had failed to apprehend and evaluate evidence;

b. that the trial judge had erred in finding facts in the absence of supporting evidence;

c. that the trial judge had erred in law and fact in failing to accept the father’s evidence;

d. that the trial judge had failed “to apprehend the best interests of the child”;

e. that the trial judge “erroneously placed weight on the interests of the mother, rather than the best interests of the child”;

f. That the trial judge misapprehended evidence of mother’s “inability to provide stability for the child and herself” and correspondingly failed to give proper weight to evidence regarding father and his family’s ability to provide stability and care for the child;

g. That the trial judge erred in “findings of fact with regard to the [mother’s] conduct during the police and CAS investigations”; and,

h. That the trial judge erred in ignoring evidence of Poland’s failure to honour its international treaty obligations to enforce parenting orders.

[22] However, at the appeal hearing and in his factum, the Appellant restricted his submissions to the following factual and legal issues:

a. “Was the learned Trial Judge in error in finding without evidence that the Applicant mother would be deported from Canada?”;

b. “Was the learned Trial Judge in error in failing to consider all evidence?”; and

c. “Was the learned Trial Judge in error by failing to consider all necessary factors to determine the best interests of the child?”

Mother in response:

[23] Mother’s counsel, Polish himself, described his client as a “typical Pole who wants to go home”. He submitted that the evidence at trial established that:

a. the mother was content to remain in Canada when she had work, and when she was in a relationship with the father;

b. the mother gave up her work visa when she moved in with the father. When the child was born and they were living together, she was hopeful that he would sponsor her to immigrate to Canada so that she could resume working to contribute financially;

c. the father never did sponsor her;

d. after their relationship ended, the mother’s evidence was that father’s family was abusive to her;

e. she had to move into a shelter with K, where she was still residing at trial. Without a visa and with primary care of K, the mother could not work. She was isolated, has few supports in Canada and does not speak English well.

[24] Respondent mother’s counsel submitted that the evidence provided by the mother and of her witnesses at trial was accepted by Justice Parent. The trial judge appropriately was entitled to find that the mother has family support, a job and housing in Stare Guty and that she will be able to provide for K if she returns to Poland.

[25] Counsel also submitted that Justice Parent did not err in giving little weight to father’s evidence regarding Stare Guty. Father’s only evidence on this point was not persuasive, consisting of the lay opinion of a lawyer sent by father’s counsel to travel to that community and make observations. That witness spent no more than a few hours in Stare Guty and made critical subjective comments about the modest circumstances of the community. The witness evidence did not dispute the mother’s evidence that she had arranged employment, housing, and family support for herself and the child in Stare Guty.

Standard of APPELLATE review in family law cases:

[26] The Supreme Court of Canada set out the standard of appellate review in family matters in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, followed by the Ontario Court of Appeal in Sferruzzi v. Allan, 2013 ONCA 496, at para. 43.

[27] The standard for review on issues of law is correctness.

[28] On issues of fact, there is deference given to the trial judge. To succeed in an appeal from a finding of fact, an appellant must show that the trial judge made a “palpable and overriding error” on an issue of fact.

[29] Absent an error or misapprehension of relevant evidence, the assignment of weight to any piece of evidence or to any of the factors to consider, is for the trial judge to decide. The deference principle prevents an appellate Court from conducting a de novo hearing or de novo weighing of evidence or of the factors to consider: Pike v. Cook, at para. 4.

[30] Custody and access decisions require a trial judge to conduct a careful balancing of competing interests based on the evidence. For that reason, a trial judge’s decision on custody and access must be approached by the appellate court with considerable respect and deference: C.S. v. M.S., 2010 ONCA 196, 76 R.F.L. (6th) 14; Marcus v. Lebedoff.

Analysis:

[31] Having reviewed the decision of Justice Parent and considered the submissions of the parties, I find as follows on the issue of deportation.

[32] Paragraphs 220 to 235 of the trial decision give Justice Parent’s reasoning to support her finding that the mother could be deported at any time. The trial judge found a lack of evidence from the father to support his argument that the mother engaged in self-help by failing to apply to remain in Canada on humanitarian and compassionate grounds.

[33] The trial judge accepted the mother’s evidence that she did not start such a process because she had been told that it was a prolonged process with little likelihood of success.

[34] The trial judge found at paragraphs 221 and 222 that the mother is the child’s primary parent, and that the father’s role in the child’s life was more limited. This finding was not disputed by the father at trial nor on appeal.

[35] On this issue, the trial evidence supports Parent J.’s conclusion that because she has no permanent status, and had not been sponsored by the Appellant, the mother could be deported from Canada at any time.

[36] If the mother were deported to Poland, father would not consent to the child leaving with her. Justice Parent concluded that the result in such circumstance, that the child would be separated from her primary caregiver, was contrary to the child’s best interests.

[37] I find no error in the trial judge’s factual findings or conclusion on this issue.

[38] This ground of appeal is therefore dismissed.

Remaining grounds of appeal:

[39] The remaining grounds of appeal can be distilled into contentions that the trial judge: gave too much weight to the mother being the primary parent and therefore permitting her to move to a place with fewer opportunities for a child; failed to give appropriate weight to the importance of the child’s relationship with her father; and did not give sufficient consideration to the stability he and his family can provide if the child remains in Canada.

[40] The father’s submission on this point amounted to an argument that Stare Guty, Poland is not as good a place to grow up in as Canada, and that Justice Parent failed to give sufficient weight to the desirability of the child growing up in Canada rather than in Stare Guty.

[41] I have considered the submissions of the parties and the case law referred to. The father’s contention that the trial judge did not apply the best interests of the child considerations appropriately can be dismissed by a review of the trial decision. Several pages of the decision set out the statutory criteria pursuant to the Children’s Law Reform Act and the trial judge’s thorough consideration of each.

[42] In considering the statutory factors, the trial judge accepted evidence of family violence toward mother. She found at paragraph 268 of her decision that the mother had been exposed to “a pattern of coercive and controlling behaviour” by father and his parents during the parties’ relationship. The mother was subject to physical and psychological abuse in their home.

[43] The trial judge also considered the common law framework, acknowledging the difficult balancing which must be done where relocation by the primary parent results in less parenting time with their other parent.

[44] I further find that trial judge considered and appropriately applied the guidance in O’Brien v. Chuluunbaatar, 2019 ONCJ 490, aff’d 2021 ONCA 555, at para 128.

[45] In that decision, the court found that consideration of the economic impact on the child was appropriate, and that permitted the primary parent to relocate where she had work and could support herself and the child: Chuluunbaatar, trial decision, at para. 39.

[46] In this case, the father argues that he and his family have more resources to provide primary care for the child. The trial evidence was that the mother and child were living in a women’s shelter due to violence towards her in the father’s home. The father was not paying any interim support and she had no job.

[47] The only evidence before the trial judge as to how the mother could care for the child was if she went home to Poland. The applicability of the Chuluunbaatar analysis was supported in this case by the additional factor that the father would offer to support the child but not the child’s primary caregiver, his former partner.

[48] I find that Parent J. was live to the difficulties in this case. She referenced at several points in her decision the lack of more extensive evidence on the issues she was required to determine. She was required to make findings on the evidence in front of her and to make a difficult decision accordingly.

[49] In the end the trial judge found that as between the two parents, the mother had a clearer “plan” for how to proceed in the event of the court’s ruling, whether it was to permit or deny the request to relocate. The trial judge also preferred the mother’s evidence with respect to her commitment to supporting the child and maintaining a relationship with the other parent.

[50] I find that it was open to the trial judge to find the facts that she did. Those findings are entitled to deference. I further find no error in her application of the law to those factual findings and her final decision.

[51] I give no effect to the remaining grounds of appeal.

Conclusion:

[52] The father’s appeal is dismissed.

[53] No costs were sought by either party, so no costs are ordered.

Other issue – Court observations (not part of appeal decision reasons):

[54] The trial in this matter was held in the Ontario Court of Justice.

[55] It is common ground that the father has failed to pay the lump sum support directed in the Final Order, nor did he appeal the support issues to this court.

[56] In his submissions at the appeal hearing, the mother’s counsel indicated that the mother may be seeking an SDO to issue, as apparently no support deduction order (SDO) had been made as of the date of the appeal.

[57] The mother’s request for FRO enforcement of support per the Final Order should be made to the Ontario Court of Justice.

[58] The parties are encouraged to resolve this issue in the best interests of their child.

MCSWEENEY J. Released: February 13, 2024