



COURT OF APPEAL FOR ONTARIO

CITATION: S. v. A., 2021 ONCA 744

DATE: 20211007

DOCKET: M52807 (C69835)

Coroza J.A. (Motion
    Judge)

BETWEEN

W.S.

Applicant

(Respondent/Responding Party)

and

P.I.A.

Respondent

(Appellant/Moving Party)

Gary S. Joseph and Alice Parama, for the moving party

Gary Gottlieb and Mira Pilch, for the responding party

Heard: September 23, 2021

REASONS FOR DECISION

[1]

Mr. S, the respondent, and Ms. A, the appellant,
    were married in 2011 and separated in 2016. They have two children, L who is
    seven and A who is five.
[1]


[2]

Regrettably, both parties could not resolve the
    parenting issues relating to their children. The respondent issued an
    Application in 2016. A hotly contested 39day trial was held over nine weeks in
    the Superior Court of Justice beginning in May of 2021. On September 9, 2021,
    the trial judge released very lengthy and comprehensive reasons ordering that
    the primary care of the children be transferred to the respondent and granting
    him sole responsibility for decision making.

[3]

The appellant has filed a Notice of Appeal with
    this court. She seeks a stay of the trial judges final order pending her appeal.
    The motion is opposed by the respondent.

[4]

The test for a stay is not disputed. This court
    recently summarized the test in the following way, in
D.C. v. T.B.
, 2021 ONCA 562, at para. 9:

Custody and access orders remain in effect
    pending an appeal to this court unless the court has ordered otherwise. In
    determining whether to stay an order involving the parenting of a child, the
    courts must consider: (1) whether, on a preliminary assessment, the appeal
    raises a serious question (recognizing that this is a low threshold); [2] whether
    the child will suffer irreparable harm if a stay is refused; and (3) 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.
    The overriding consideration, again, is the best interests of the child. In
    other words, the court must be satisfied that it is in the childs best
    interests to grant a stay. [Citations omitted.]

[5]

For the reasons that follow, I would dismiss the
    application for a stay.

Serious Question

[6]

It is not necessary to outline each and every
    ground of appeal that will be advanced by the appellant in her Notice of
    Appeal. This is not the appeal. For the purpose of this motion, I will address
    three arguments that the appellant intends to develop on appeal.

[7]

First, the appellant argues that the trial judge erred
    by reversing custody because the
respondent has a long and documented
    history of domestic violence against her and the children. The appellant
    submits that the children show signs that they fear him and during the trial,
    the appellant provided examples of the oldest child kicking, screaming, biting,
    punching, and swearing to avoid seeing his father. The appellant contends that
    the trial judge unreasonably rejected this relevant and compelling evidence of
    serious domestic violence and that this is a significant error because the amendments
    to the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.), prioritize
    considerations of family violence and its impact on the parenting of the
    children.

[8]

In my view, the appellant faces an uphill climb in advancing this ground
    of appeal. The trial judge made strong findings that the appellants
    allegations of physical, financial, and sexual abuse had not been made out.
    Moreover, the trial judge found that the appellant had intentionally acted to
    undermine court-ordered parenting schedules and reunification counselling by
    bringing false allegations of sexual abuse designed to terminate the childrens
    relationship with the respondent.   As I read her reasons, the trial judge was
    prepared to find that the respondent did verbally and emotionally abuse the
    appellant during their marriage, but this had no impact on his present ability
    to be primary caregiver and decision maker for the children. That was the trial
    judges call to make. When I consider that the standard for appellate review of
    a custody or parenting decision is exacting, and that the function of this
    court will not be to retry the case, these complaints appear to me to be
    destined to fail:
Bors v. Bors
, 2021 ONCA 513, at paras. 18-20;
A.M.
    v. C.H.
, 2019 ONCA 764, 32 R.F.L. (8th) 1, at paras. 4, 74.

[9]

The trial judge also specifically dealt with the argument that the
    amendments to the
Divorce Act
put domestic violence at the forefront,
    at para. 23 of her reasons. After noting that a history of family violence has
    always been an important factor in the adjudication of parenting disputes, she
    concluded that the pattern of family violence that threatened the childrens
    best interests was not the conduct of the respondent. Instead, she made very
    strong findings that it was the appellants conduct that undermined the best
    interests of the children. Her careful reasons do not reveal any obvious error
    in reaching that conclusion.

[10]

Second,
    the appellant argues that the trial judge erred in relying on a dated assessment
    under s. 30 of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12. Howard
    Hurwitz completed this assessment in 2017 and provided the court with a
    detailed report on March 9, 2018.

[11]

The
    appellant argues that the trial judge stated that the report was dated and
    could not be of any assistance to her. The appellant points to comments that
    the trial judge made when she adjourned the trial on June 2, 2021, so that she
    could explore obtaining an updated report from Mr. Hurwitz. However, when the
    parties next appeared in court on June 4, 2021, the trial judge seemingly
    changed her mind and told the parties an updated was not necessary and did not
    explain why. In his report, Mr. Hurwitz reported that he saw no evidence that
    the respondent was dangerous or that he could not move forward with the
    appellant to develop a healthy parenting plan. However, Mr. Hurwitz did not
    recommend custody reversal in his report  he had recommended sole custody to
    the appellant. The appellant argues that the trial judge erred in relying on
    the report.

[12]

I
    do not find this argument to be a compelling one.

[13]

I
    am not clear as to what an updated s. 30 assessment report would have
    accomplished. As this court has previously held, the law is clear that a trial
    judge should not delegate decision making to an assessor, and an assessors
    evidence is but one piece of evidence to consider:
Mattina v. Mattina
,
    2018 ONCA 641, at para. 13, leave to appeal refused, [2018] S.C.C.A. No.
    392. The fact that the report may have been dated was a factor to consider. It
    was the trial judges call to make whether or not an updated report was
    required. Of course, the context of this trial cannot be ignored. The trial had
    been extensively case managed by judges of the Superior Court, and there had
    been lengthy delays in getting the matter to trial. The decision not to order
    an updated s. 30 report is an exercise in trial management, and I see no
    obvious error in the trial judges call.

[14]

In
    any event, even if the report was dated, Mr. Hurwitz was produced for trial.
    Counsel for the appellant was able to cross-examine Mr. Hurwitz and inquire
    about the respondents weaknesses as a caregiver. It appears that there was
    very little prejudice visited on the appellant by not having an updated report.
    The trial judge was entitled to rely on the report and the cross examination in
    reaching her decision.

[15]

Third, the appellant submits that it is of grave
    concern that, out of the several professionals involved with the parties and
    their children since 2016, none recommended a custody reversal except a
    reunification therapist, Wendy MacKenzie, who was a clinician permitted to
    offer opinion evidence without a
voir dire
. The
    appellant also complains that Ms. MacKenzie was not a registered social worker.

[16]

The respondent argues that the trial judge did
    inquire into Ms. MacKenzies qualifications and that previous judges involved
    in prior motions in this case had accepted Ms. MacKenzie as an expert.

[17]

I am not prepared to say that this argument
    should be dismissed out of hand. The appellant may develop an argument that Ms.
    MacKenzie provided inadmissible opinion evidence that strayed well beyond her
    expertise and that a
voir dire
was required to
    determine her qualifications and the nature of the opinion that she was
    qualified to give to the court.

[18]

That said, I note that it is the appellant, through counsel, who
    first proposed in early January 2020 that the parties retain Ms. MacKenzie to
    conduct reunification counselling. It seems to me that the bulk of Ms.
    MacKenzies evidence (as summarized by the trial judge) relates to her
    observations of the parties during this process. The trial judges reasons
    reveal that
Ms. MacKenzie provided evidence on which parent was best
    prepared to work within the reunification process. The trial judge also
    described in detail the efforts made by Ms. MacKenzie to counsel the appellant
    about fostering a positive relationship with the respondent. In the end, the
    trial judge found that the appellant had intentionally undermined and sabotaged
    the reunification process. The trial judge found that, although Ms. MacKenzie
    had made efforts to convince the appellant to support the childrens
    relationship with their father, this proposition was never accepted by the
    appellant. I do not see any obvious error in the trial judges treatment of Ms.
    MacKenzies evidence, nor do I see how the failure to hold a
voir dire
would make her observations inadmissible.

[19]

That
    said, this is not the appeal. The threshold to cross in order to establish that
    there is a serious question on appeal is a low one. I am prepared to say, with
    this ground of appeal, the appellant has met the threshold for establishing a
    serious question for appeal. To be clear, I am not suggesting that this ground
    of appeal is strong.

Irreparable Harm

[20]

The
    appellant argues that the children will suffer irreparable harm if they are
    forced to reside with their father, and that the court should revert back to
    the
status quo
. The appellant argues that there has been a long
    history of domestic violence towards the children, and that she has had primary
    care of the children. The appellant submits that the order causes irreparable
    harm because the children effectively lose their meaningful parent-child
    relationship with her, their primary caregiver, mother, and support system.

[21]

The
    appellant argues that the change ordered by the trial judge is so drastic that it
    has caused physical, emotional, social, and psychological harm to the children.
    The appellant relies on two pieces evidence that she has obtained post-trial to
    support her submission on irreparable harm.

[22]

First, the appellant points to a recent chat she had with her
    oldest child on Zoom. In that chat, the
child wrote, help
    call popo [police]. The child also wrote, pls [please] get me out of here
    and i hate my life. The appellant points to this as evidence that the child
    is suffering in the current situation.

[23]

As a preliminary matter, the respondent objected
    to the appellant filing these excerpts of communications. I do not see the
    basis for the objection. This appeal involves the best interests of a child and
    on a motion to stay it is important to have the most current information
    possible when determining irreparable harm. I see no issue with this evidence
    because the primary concern is the childs best interests.

[24]

Turning now to the appellants argument that the
    chats demonstrate irreparable harm, I do not view this as evidence of
    significant harm. Arguably, there is contrary evidence from the respondent that
    suggests that the children have adjusted well since the order was made and are
    working on a continuing positive relationship with the respondent.

[25]

It is beyond dispute that moving children back
    and forth is necessarily disruptive. It seems to me that, while reversal of
    custody decisions contemplate that there will be initial unhappiness, they are decided
    for the long-term benefit. The trial judge recognized this. While the chats are
    troubling, they do not provide evidence of significant or irreparable harm.

[26]

Second, the appellant relies on an opinion from Dr.
    Peter Jaffe, a psychologist and Professor Emeritus in the Faculty of Education
    at Western University and Director Emeritus of the London Family Court Clinic.
    According to the opinion, the type of arrangements ordered by the trial judge
    rarely work, and custody reversal is highly intrusive and does not always
    succeed because it may further traumatize children.

[27]

Respectfully, I am not persuaded that this
    report should carry much weight in the analysis. I do not dispute that Dr.
    Jaffe is an expert. But this evidence does not assist me on this motion. It has
    not been subjected to cross-examination, he was not called as a witness at
    trial, he did not meet the children or the parties, or review the trial
    evidence. He was only asked to comment on his opinion with respect to custody
    reversal. This opinion does not provide a picture to this court as to how the
    children are doing post-trial in assessing irreparable harm. In addition, it
    is not clear to me that this new evidence would be admissible on the appeal,
    even with the caveat that the test for fresh evidence is more flexible where an
    appeal involves the best interests of a child:
Goldman v. Kudelya
, 2017 ONCA 300, at para. 25.

Balance of Convenience

[28]

In my view, this factor tips in favour of the
    respondent. I am not satisfied that there is evidence of irreparable harm or
    risk of harm to the children as a result of the order, but there is evidence of
    benefit to the children in continuing to have the trial judges order intact
    pending appeal. The trial judge concluded that the very best outcome for the
    children is to first restore their parenting relationship with the respondent,
    and then to progress parenting as quickly as possible to a schedule appropriate
    to their age and stage of development, while minimizing transitions. To stay
    the order under appeal would be highly disruptive to this goal and would not be
    in their best interests. The order was made on September 9, 2021. The children
    have had less than one month to adjust to being with the respondent. I see no
    reason at this stage to doubt the trial judges conclusions as to what the best
    interests of the children are.

[29]

The overarching consideration in whether to
    grant a stay pending appeal is whether doing so is in the interests of justice.
    By all accounts, this was a very difficult, high-conflict trial. In light of
    the very weak grounds of appeal, no evidence of irreparable harm, and the
    balance of convenience tipping in favour of maintaining the trial judges goal
    of restoring the parenting relationship with the respondent, it is not in the
    interests of justice to grant a stay.

Conclusion

[30]

For these reasons, the application for a stay
    pending appeal is dismissed. Within ten days of the release of this decision,
    the parties may provide costs submissions in writing not to exceed three pages,
    supported by bills of costs. The parties are directed to contact the Appeal
    Scheduling Unit to arrange for a case management judge with a view of
    expediting the appeal.

S. Coroza J.A.





[1]
The decision appealed from initialized the parties and the childrens names as
    well as omitting their birthdates to protect their privacy. I have decided to
    continue to do the same in these reasons.


