Lifting an automatic stay pursuant to section 27 of the Children’s Law Reform Act

Zhong v Wang, 2014 ONCJ 487

This case addresses the issue of lifting an automatic stay pursuant to section 27 of the Children’s Law Reform Act.

Background

The parties were married in 1994.  The parties and the two children of the marriage moved to Canada on July 31, 2013.  Thereafter, the parties separated on January 19, 2014, following an assault by the Father on the Mother.  The Father has not seen the children since January 19, 2014.  On July 18, 2014 the Father pleaded guilty to the charges of assault and failure to comply with his recognizance (paragraph 7).  The Mother commenced proceedings on July 15, 2014 with respect to the issues of custody, access, travel and passports, child support, non-removal and a restraining Order.  On August 2, 2014, Counsel for the Father advised Counsel for the Mother that the Father intended “to bring a divorce application in the Superior Court of Justice and requesting that this proceeding be stayed” (paragraph 10).

Analysis

Section 27 of the Children’s Law Reform Act provides that “where an action for divorce is commenced, any application under the Children’s Law Reform Act for custody of or access to a child that has not been determined is stayed except by leave of the court” (paragraph 17).  Although there is no guidance in section 27 as to what a court may consider when granting leave to continue a proceeding under the Children’s Law Reform Act, section 138 of the Courts of Justice Act provides “as far as possible, multiplicity of legal proceedings should be avoided” (paragraph 18).

The case law also provides that the Ontario Court of Justice should consider the following three factors when deciding whether or not to lift an automatic stay:

  1. bad faith;
  2. prejudice; and
  3. waste of court resources (paragraph 20).

The Ontario Court of Justice then analyzed each of these factors taking into consideration the facts of the case.

First, the court found that the Father commenced his divorce application after being served with the mother’s application and despite being aware a court date had already been scheduled in the Ontario Court of Justice.  Further there was no claim of an equalization payment or a claim for exclusive possession of the matrimonial home (property claims) within the Father’s materials.  Despite these facts, the Court was not prepared to find that the Father had acted in bad faith as there may have been a lack of understanding by “father’s counsel as to the fact that the father could still obtain a divorce without requiring the issuance of a divorce application at this juncture” (paragraph 27).

The Court then turned its mind to consider whether the staying of the proceedings was prejudicial to the Mother.  The Court found that it would be prejudicial “to the mother if she was required to proceed in the Superior Court of Justice.  I also find that it would be in the best interests of the children to begin to see their father, if they wish and that any further delay would not be in their best interests” (paragraph 36).  The Mother did not appear as though she would be in a position to proceed with a case conference on the date selected by Counsel for the Father.  Further, the Mother did not speak or read English, and, as such, in light of the language barriers, it would be prejudicial to the Mother if she was required to prepare new pleadings.  Lastly, the Father was in a better financial position than the Mother and could “more easily absorb the cost of preparing responding materials to the application before this court” (paragraph 31).

The Court found, with respect to the factor of a court’s resources, that the issues could be dealt with “expeditiously and with far less expense than the formal trials that are generally held in the Superior Court of Justice” (paragraph 39).

Given all the above, the Court granted the Applicant’s Motion and Ordered that the automatic stay pursuant to section 27 of the Children’s Law Reform Act be lifted.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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