



COURT OF APPEAL FOR ONTARIO

CITATION: N.S. v. R.M., 2019 ONCA 685

DATE: 20190830

DOCKET: M50741 (C67325)

Pardu J.A. (In Chambers)

BETWEEN

N.S.

Applicant (Respondent)

and

R.M.

Respondent (Moving Party)

Gordon S. Campbell, for the Respondent (Moving Party)

Christian Pilon, for the Applicant (Respondent)

Heard: August 29, 2019

REASONS FOR DECISION

[1]

The moving party, the father, moves for a stay
    pending appeal of the judgment of Doyle, J. of the Superior Court permitting
    the respondent, the mother, to move the residence of two children, age five and
    seven from Orleans, Ontario to Montreal, Quebec. For the reasons that follow,
    the motion for a stay is dismissed.

[2]

The father argues that applying the test in
RJR-Macdonald
    v. Canada (AG)
, [1994] 1 S.C.R. 311, 127 D.L.R. (4th) 1
    should lead to the grant of a stay. He submits that there is a serious issue to
    be tried as to the correctness of the decision under appeal, that he will
    suffer irreparable harm if the stay is not granted, and that the balance of
    convenience favours granting a stay.

[3]

The trial judgment from which the father appeals
    followed a 20-day trial.

[4]

As this court has reiterated many times, an
    appeal court must not retry a custody case. Instead, this court must 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. As Bastarache J. noted in
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2
    S.C.R. 1014, at para. 13:

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.

[5]

That deference is particularly owed, where, as
    here, the trial judge has given detailed and thoughtful reasons for her
    conclusions as to the childrens best interests. After a 20-day trial, I begin
    with the premise that the trial judgment likely gives effect to the childrens
    best interests.

[6]

The father asks that the mother be enjoined from
    moving to Montreal, and that the status quo before trial be restored, pending
    the hearing of the appeal. Before trial, the father had access on Sundays for
    4.25 hours, and on Tuesday and Thursday evenings for 2.25 hours. He had not had
    the children for overnight access. The trial judgment provided that upon the
    mothers move with the children to Montreal, the father would have access on
    alternate weekends, on Saturdays from 9:00 a.m. to 7:00 p.m. and on Sundays
    from 9:00 a.m. to 5:00 p.m. and one weekday visit for three hours in Montreal
    on notice to the mother. Commencing February 8, 2020, the alternating weekend
    access was to increase to include overnight access, from Saturdays at 9:00 a.m.
    to Sundays at 5:00 p.m. The father was given a week of access in the summer, a
    share of Christmas break access, and video call access on Tuesdays and
    Thursdays in the evening.

[7]

The father asks in his Notice of Appeal for an
    order for joint or shared custody, and an order prohibiting the mother from
    moving the residence of the children.

[8]

He sets out various errors he says the trial
    judge made in his notice of appeal:

1.

The trial judge failed to consider the best
    interests of the children, and erred by not adopting the recommendations of an
    assessor.

2.

The trial judge erred by failing to give effect
    to the maximum contact principle in circumstances where he says the best
    interests of the children would not be advanced by the move.

3.

The trial judge failed to consider the
    advantages to the children of maintaining a link to their Inuit heritage,
    through their father.

4.

The trial judge erred in admitting the decision
    of a disciplinary panel of the assessors governing body, which was critical of
    the manner in which the assessor conducted the assessment.

5.

The trial judge should have weighed the evidence
    about the childrens best interests differently.

[9]

This was a high conflict custody dispute. The
    parties had difficulty managing the exchanges of the children, to the point
    that the exchange had to be supervised, where that service was available. Each
    party blames the other for the tension between the parents. The affidavit
    evidence indicates that the children are adversely affected by the hostility
    between the parents.

[10]

I would not characterize the grounds of appeal
    as particularly strong. For example, the father argues on appeal that the trial
    judge erred in admitting the findings of the regulatory body regarding the
    assessor. However, trial counsel consented to the admission of that evidence
    and argued that the real issue was the weight to be given to that evidence.

[11]

The father had 8.75 hours of daytime access each
    week before the trial, a status quo to which he seeks a return pending the
    hearing of the appeal. The trial judgment gives him 24 hours daytime access
    every two weeks until February 2020, when it expands to 38 hours every two
    weeks, including overnight access on alternating weekends. The father does not
    give any concrete instance of how the access granted by the trial judge will
    lessen his ability to transmit his Inuit culture to his daughters, compared to
    the access he had before trial.

[12]

The evidence establishes that the mother had the
    substantial responsibility for caring for the children and managing their
    activities and education. This continues with the trial judgment.

[13]

The mother has agreed to transport the children
    to Ottawa to facilitate the fathers access. She will maintain her home there,
    owned by her own mother, so that she can stay there on access weekends.

[14]

The mother and the children have close ties to
    Montreal. She has moved to an apartment in the same building as occupied by her
    mother, some 550 meters from the school the children have just begun to attend.
    Her mother has offered her employment in property management, and she will earn
    $50,000 a year for the first two years and it is proposed that she will then
    take over management of her mothers portfolio of investment properties.

[15]

The mother now has no income. Once permission to
    move was granted she stopped accepting contracts for translation work. Her
    income from that work was only approximately $20,000 a year. She also withdrew
    the children from the school they attended in the Ottawa area, and has now
    moved to Montreal and enrolled the children in the school close to her
    apartment in Montreal. There is a two-year waiting list to get into the school
    the children attended previously, and their places have been given to other
    children. According to the affidavit evidence, the children would accordingly
    have to change schools whether they stay in Orleans or move to Montreal. The children
    have spent a great deal of time in Montreal and a move there is likely to enhance
    their experience of the French language culture, which is also part of their
    heritage.

[16]

I am not persuaded that the father will suffer
    irreparable harm if the move is not enjoined before the appeal can be heard.
    Travel from Ottawa to Montreal is said to take two hours by train. I do not
    view that as a particular hardship for either the parents or the children. The
    father can have as much, if not more time with the children than he had before
    trial. Most importantly, the frequency of exchanges marked by high levels of
    tension has been hard on the children. The children are of an age that they
    should be able to tolerate longer time with their father, but with fewer
    exchanges.

[17]

The balance of convenience favours allowing the
    move to take place. The mother has enrolled the children in a new school, while
    the former school is no longer available. The mother has the certain prospect
    of employment income if she resides in Montreal. In the event the trial
    judgment is reversed so as to require the mother to reside in Orleans with the
    children, she can move back there, since the property in which she resided
    there will continue to be available to her.

[18]

Having regard to the strength of the grounds of
    appeal, the absence of irreparable harm, the balance of convenience, and the
    best interests of the children I am not persuaded that the change of the
    childrens residence to Montreal should be enjoined pending hearing of the
    appeal. The motion is dismissed, with costs to the respondent mother, fixed at
    $5,000.00.

G. Pardu J.A.


