


COURT OF APPEAL FOR ONTARIO

CITATION: K.K. v. M.M., 2021 ONCA 407

DATE: 20210608

DOCKET: M52479 & M52499 (C69393)

Zarnett J.A. (Motions
    Judge)

DOCKET: M52479

BETWEEN

K.K.

Applicant

(Appellant/Moving
    Party)

and

M.M.

Respondent

(Respondent/Responding
    Party)

DOCKET: M52499

AND BETWEEN

K.K.

Respondent

(Appellant/Responding
    Party)

and

M.M.

Applicant

(Respondent/Moving Party)

Gary Joseph and Vivian Li, for the appellant, K.K.

Aida Pasha, for the respondent, M.M.

Heard: June 3, 2021 by videoconference

ENDORSEMENT

Introduction

[1]

The appellant, K.K. (the father) moves for a
    stay pending appeal of the aspects of the trial judges April 9, 2021 Final
    Order (the Order) that pertain to parenting the parties son, J.K.

[2]

The Order directed that J.K.s primary residence
    be with the respondent, M.M. (the mother), and temporarily suspended, and
    then restricted, contact between the father and J.K. Pursuant to the Order,
    J.K.  has relocated to the mothers home and has been residing with her for
    close to two months. For about six years prior to trial, J.K. had lived with
    the father.

[3]

The mother opposes the stay and moves for
    security for costs of the appeal.

[4]

For the reasons that follow, both motions are
    dismissed.

The Litigation, The Trial Judges Findings, and the Order

[5]

The parties separated in November 2012. They then
    engaged in what the trial judge described as a protracted high-conflict legal
    battle involving their children, V.K. (now 16 years old) and J.K (now 11 years
    old). From the time the proceedings commenced in 2013, there were approximately
    40 court appearances at motions and conferences.

[6]

During the litigation, several pre-trial orders
    about the childrens primary residence were made. In March 2014, sole custody
    of the children was granted to the father based on an interim finding of
    parental alienation by the mother. As the trial judge found, [f]or the next
    six and a half years, the children resided with the father inBrampton and had
    extremely limited parenting time with the mother, including lengthy periods of
    virtually no contact or communication.

[7]

In September 2020, V.K. left the fathers residence and
    moved in with the mother in Toronto. At the time of trial, the children were
    living in separate residences  J.K. with the father and visiting the mothers
    house on weekends, and V.K. with the mother.

[8]

The matter was tried over 19 days between
    November 2020 and April 2021. Among the major issues at trial were the allocation
    of parental decision-making, the question of with whom the children should
    primarily reside, and the parenting schedule.
[1]
Important to the disposition of those issues was the question of which parent
    had tried to alienate the children from the other parent.

[9]

The trial evidence canvassed the history of the
    parties behavior and interactions with the children, one another, and various
    professionals. This provided the trial judge with what she considered to be a
    more comprehensive evidentiary basis than that on which the interim pre-trial
    findings had been made.

[10]

The trial judge found that the father was not a
    credible witness. She found the mother to be credible and, for the most part, a
    reliable historian. She concluded that the mother did not engage in any
    alienating conduct, but rather was the target of the fathers vilification and
    parental alienation.

[11]

The trial judge considered the parenting plans
    put forward by the parties but directed herself that she was ultimately to
    determine what orders would be in the childrens best interests. In this
    regard, she made several findings that underpin the provisions of the Order pertaining
    to J.K.

[12]

The trial judge found that the physical,
    emotional and psychological safety, security and well-being of both children
    would best be fostered if they were living together in their mothers home.
    She found that while V.K. had made a rational decision in her own best interest
    to move in with her mother, J.K. was not old enough to be able to evaluate what
    was in his own best interest, that his views had been profoundly influenced by
    his fathers relentless vilification of his mother, and that his expressed
    desire (including to an Office of the Childrens Lawyer clinician) that he
    wished to reside with his father was not independently formed.

[13]

The trial judge concluded that J.K.s best
    interests necessitate not only that he lives principally with his mother and
    sister, but also that he has no contact with his father for a temporary period
    of time. She came to that determination after noting that J.K. had a strong
    emotional attachment to his father, in whose primary care J.K. had been for most
    of his life and recognizing that separating him from his father would have a
    serious emotional impact on him. But she was convinced that he needs to be
    removed from the poisonous atmosphere of his fathers orbit in order to escape
    the crushing pressure under which he has been placed.
She rejected ordering
    supervised parenting time for the father to maintain regular contact with J.K.,
    which would be a less dramatic transition fraught with less emotional upheaval
    given the fathers history of continual manipulation and relentless and
    effectiveefforts to undermine J.K.s relationship with the mother, which she
    expected would continue. She concluded that a temporary period of no contact
    with the father is what will promote J.K.s best interests
.

[14]

The Order, made immediately following the conclusion
    of the trial, addresses parenting of both children. I describe in general terms
    only those aspects relating to J.K., as they are the subject of both the appeal
    and the motion for a stay.

[15]

The Order directed that the principal residence
    of J.K. would be with the mother, who would have sole responsibility for making
    all day-to-day significant decisions, including selection of schools,
[2]
professionals, and decisions about
    healthcare, without any requirement to consult with the father. The father is
    prohibited, until June 19, 2021, from communicating with J.K. or having any
    parenting time with him outside of sessions with a specified counsellor. From
    June 20 to July 31, 2021, the father is permitted two weekly video calls of up
    to 20 minutes in length with J.K. After August 1, the father is also permitted
    in-person parenting time with J.K. each Sunday from 10 a.m. to 6 p.m. After
    September 30, 2021, the father may bring a motion before the trial judge to
    review the parenting schedule and for expansion of his parenting time with J.K.
    and his responsibility for parental decision-making.

The Motion to Stay

[16]

The fathers motion to stay was brought before
    the detailed reasons of the trial judge were available but was heard shortly
    after those reasons were released. The father asks that the Order be stayed and
    that the care and primary residence of J.K. be returned to him, pending
    disposition of his appeal.

[17]

The test for a stay of an order involving the parenting of a child is
    not in dispute. The overarching consideration in whether to grant a stay
    pending appeal is whether doing so is in the interests of justice. Three
    factors are considered: (1) whether, on a preliminary assessment, the appeal
    raises a serious question, recognizing that this is a low threshold; (2)
    whether the child would suffer irreparable harm if the application were
    refused; and, (3) the balance of convenience, namely, whether there would be
    greater harm from the granting or refusal of the remedy pending a decision on
    the merits:

Lefebvre v. Lefebvre

(2002),
    167 O.A.C. 85 (C.A.), at para. 6;
Circuit World Corp. v. Lesperance

(1997),
    33 O.R. (3d) 674 (C.A.), at paras. 8-9.

[18]

In my view, it is not in the interests of
    justice to grant a stay.

[19]

On the merits of the appeal, the father focusses
    on the decision of the trial judge to attach no weight to the opinions or
    recommendations in reports made by an assessor appointed under s. 30 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12 (
CLRA

), or to arrange for him to testify. The
    assessors 2014 reports were the support for the finding in March 2014 that the
    mother had engaged in parental alienation, which led to interim custody orders
    in the fathers favour; the assessor made subsequent reports through 2018. Under
    the
CLRA
, an assessors reports are admissible
    in evidence and the assessor may be required by any of the parties to attend at
    the hearing as a witness: ss. 30(9), (10).

[20]

The trial judge made these rulings relying on a
    decision made by the Inquiries, Complaints and Reports Committee of the College
    of Physicians and Surgeons of Ontario (CPSO) in regulatory proceedings
    against the assessor and a record of the assessors membership status on the
    CPSO website. She viewed the regulatory decision as discrediting the assessors
    reports because it found that they had been prepared in a manner that fell
    below professional standards. Aside from the regulatory decision, she would not
    have relied on the assessors reports without his attendance for
    cross-examination, a request she would have denied because of undertakings the assessor
    had given to the CPSO as disclosed by the website information.

[21]

The father argues that the trial judge erred in
    overriding the statutory admissibility of the assessors reports and the
    statutory ability of a party to request the assessors attendance at trial. The
    father submits that she erred in treating, as inapplicable, s. 36(3) of the
Regulated
    Health Professions Act
, 1991
, S.O. 1991, c. 18. (
RHPA
), which
    makes records of regulatory proceedings at the CPSO and decisions made in them
    inadmissible in civil proceedings. He argues that the trial judge erred in
    concluding that a family law proceeding is not a civil proceeding as
    contemplated by the
RHPA
.

[22]

This argument passes the low threshold that is
    the merits aspect of the test for a stay. I say that while noting that even if
    the trial judge erred in these rulings, it is by no means clear that this would
    affect her overall decision in light of her other findings.

[23]

I am not satisfied the irreparable harm and balance of convenience
    aspects of the test favour a stay.

[24]

The father argues that directing J.K. to live
    with his mother and sister deprives him of the care of his father, in whose
    custody he had been for years. It was also against J.K.s expressed preferences
    and profoundly upsetting to him. Finally, the father submits that it will have
    the effect, albeit currently muted by the pandemics imposition of virtual
    school attendance, of causing J.K. to change schools, disrupting relations with
    his friends.

[25]

The difficulty with the fathers argument is
    that the trial judge gave detailed consideration to J.K.s best interests and
    found that they required him to reside with the mother and sister, and that
    there be a temporary suspension, followed by a re-introduction in defined
    stages, of contact with the father. She considered the very matters that the
    father relies on; specifically, J.K.s preferences, his attachment to his
    father, the emotional impact of the order she was going to make, and the
    schooling and social supports he had and would have. The fathers irreparable
    harm and balance of convenience arguments thus proceed on a different view of
    J.K.s best interests than taken by the trial judge. But, on a motion to stay,
    the result of the trial is to be treated as
prima

facie
correct:
Circuit World
, at para. 13.

[26]

Parenting decisions are inherently exercises in discretion:
Van
    de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13
.
A trial judges exercise of
    discretion, and the factual findings in connection with it, are entitled to
    deference on appeal:
A.M. v. C.H.
, 2019 ONCA 764, 32 R.F.L. (8th) 1,
    at para. 4. That caution is even more apposite on this sort of motion, where
    the opportunity to examine the record is even more limited than it will be on
    the appeal itself.

[27]

The father points to statements in the mothers affidavit about J.K.s
    difficulties in adjusting since the Order was made. But the mothers evidence
    taken as a whole paints a picture of J.K.s progress  not without bumps in the
    road  to building relationships with his mother and friends, accepting the
    benefits of counseling, and forming a strong basis for a continuing positive
    relationship with his father.

[28]

As it is almost two months since the Order was made, staying it would
    not preserve the
status

quo
, but would disassemble the
    structure the trial judge put in place and replace it with the very
    circumstances she found not to be in J.K.s best interests; it would run the
    risk of undoing the very benefits that the trial judge fashioned the Order to
    achieve.

[29]

Accordingly, the motion to stay is dismissed.

Security for Costs

[30]

The mother asks for security for costs. She says that the trial
    judge will likely award costs of the trial in her favour, that the father was
    not forthcoming in his financial disclosure, and that he will likely owe her
    arrears of support.

[31]

The mother relies on r. 61.06(1)(a) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, which provides that security
    for costs may be ordered where, among other things, there is good reason to
    believe the appellant has insufficient assets in Ontario to pay the costs of
    the appeal. This has not been shown. The mothers evidence is that the father
    owns two properties and the trial judge found that he earns substantial income.

[32]

The motion for security for costs is dismissed.

Conclusion

[33]

Both motions are dismissed.

[34]


So that the appeal proceeds in a timely way, I direct the father to
    perfect the appeal within 30 days of todays date. The mother shall deliver her
    materials as a respondent to the appeal within 30 days thereafter.

[35]

Success on the motions was divided. No costs are ordered.

B. Zarnett J.A.





[1]

There were also financial issues, including child and spousal
    support.



[2]

The mother is not permitted to change either of the childrens
    schools during the current 2020-2021 academic year.

