This recent Superior Court of Justice decision provides insight into the difficult analysis that the Court must undertake when rendering high conflict and highly contentious custody and access decisions, particularly those involving parental alienation. Specifically, this case provides insight into…
McClintock v. Karam, 2017 ONCA 277
This recent decision from the Court of Appeal causes some confusion with respect to the characterization of stay orders for the purposes of appeal, and the requirements for an exception to the general rule that an order granting a stay is final, but an order refusing a stay is interlocutory.
The parties were married in 2001, and separated in 2005. There is one child of the marriage, born in 2004. The parties were divorced in December, 2006.
After negotiation, the parties entered into a Separation Agreement in 2008, and an Amending Agreement in 2013, both of which included provisions for the parenting issues. As per the Agreements, disputes regarding custody and/or access were to be resolved through the mediation and/or arbitration process.
In 2016, the parties could not resolve a parenting dispute, and attempted mediation pursuant to the terms of the Separation Agreement. At that time, the child was now 12 years old, and resided primarily with the mother in Burlington, while the father resided in Toronto. Unfortunately, the mediation was unsuccessful.
The mother commenced an application claiming child support and other relief. In his responding materials, the father claimed that the mother had alienated him from the child, and he sought orders regarding custody and access in respect of the child.
The mother brought a motion for a stay of the father’s claims pursuant to section 7.1 of the Arbitration Act, claiming that as per their Separation Agreement and Amending Agreement, the dispute with respect to access should be resolved through arbitration. The father requested an order that the mediation and arbitration provisions of the Separation Agreement be disregarded.
The motion’s judge dismissed the mother’s motion, and ordered that the child attend counselling and undergo an assessment pursuant to section 30(1) of the Children’s Law Reform Act. In making this decision, the motion’s judge found that the Family Law Act provided the Court with authority to overrule any provision within a contract which was not in the best interests of the child. Given these particular circumstances, being a fairly high-conflict case, the Court found that this case should be decided at one trial of all issues, as opposed to fragmenting the matter between the arbitration process and court process. As the arbitration process had been stalled, and appeared to be ineffective, the Court refused to grant the stay.
The mother appealed the motion judge’s decision, claiming that refusing the stay was a final order, and therefore, was an appealable order.
In its very brief decision, the Court of Appeal dismissed the mother’s appeal. The Court reiterated the principle outlined in Hopkins v. Kay, 2015 ONCA 112 which provides that an order granting a stay is final, but an order refusing one is interlocutory. The Court of Appeal found that in this case, the motion judge’s refusal to grant the stay did not have the effect of barring the mother from disputing the court’s jurisdiction to grant that which was ordered. However, this finding does pose significant questions, as it may very well be that the mother is in fact barred from challenging the court’s jurisdiction, since the effect of the order is that the access dispute will be decided by the Court rather than through arbitration, meaning the Court has determined that the arbitrator does not have jurisdiction.
Given that the mother’s appeal was quashed, she may decide to seek an appeal of the motion’s judge’s decision through another avenue, namely, to the Divisional Court.