Sopczak v. Gye-Sik, 2011 ABQB 77

Court of Queen ’ s Bench of Alberta Citation: Sopczak v. Gye-Sik, 2011 ABQB 77 Date: 20110210 Docket: 4803 146696 Registry: Edmonton Between: Peter Michael Sopczak Plaintiff - and - Yoon Gye-Sik Defendant _______________________________________________________ Oral Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] Following a five-day trial in November 2010 before Justice Browne, the Defendant mother was awarded full custody of the 8-year-old child of her marriage to the Plaintiff father.

Justice Browne also held that the mother could move with the child to South Korea upon providing the father with 45 days notice of her intention to do so. Such notice was provided on January 1, 2011 and the mother is planning to leave for South Korea on February 16, 2011. [ 2 ] On January 7, 2011, the father filed a Notice of Appeal from the decision of Justice Browne. He failed to meet the deadline for filing the appeal record (February 7, 2011) and was granted an extension by the Case Management Officer.

[3] The father appeared before Justice Hillier on February 3, 2011 and brought an application to have the judgment of JusticeBrowne set aside. Justice Hillier adjourned the application and directed that an application by the father for a stay of execution may bemade by the father. The father now brings his application for a stay of execution of the judgment of Justice Browne pending a hearingand determination by the Court of Appeal. [4] I am providing my decision orally as I am aware of the urgency of this matter.

The mother is planning to leave nextWednesday, February 16, 2011 and the school year in South Korea begins on March 2, 2011. II. Requirements for a Stay [5] The Plaintiff father has filed his Notice of Appeal. There is little likelihood that the appeal itself will be heard before April orMay 2011. He seeks a stay of execution of the judgment of Justice Browne pending the hearing and determination on the appeal. [6] The tripartite test that must be satisfied in order for the Court to grant a stay is set out in the decision of RJR MacDonaldInc. v. Canada (Attorney General) (SCC), 1994 1 S.C.R. 311.

The applicant for the stay must establish the following: 1. there is a serious question to be argued on appeal that is neither vexatious or frivolous; 2. would the Applicant suffer irreparable harm if the stay is refused; and 3. in whose favour is the balance of convenience? [7] When applying the tripartite test to cases of custody and access, however, the second and third parts of the test areconsidered together and are modified to reflect the paramount importance of the child’s best interests (MacPhail v. Karasek 2006 ABCA320 and C.B. v.

P.C. 2003 ABCA 321). [8] This has been referred to as the modified tripartite test and as the Court of Appeal stated at para. 4 in C.B. (and at para. 3 inMacPhail) the second and third branches of the test are modified to reflect the paramount importance of the child’s best interests. TheCourt stated: Those interests mandate a consideration of whether the child will suffer irreparable harm from the denial of a stay, and it is thoseinterests that will ultimately determine the balance of convenience. Any harm to the applicants from the denial of a stay is thussubordinate to the best interests of the child. III.

Analysis 1. Is there a serious question to be tried? [9] The Defendant mother says that Justice Browne provided a thorough and careful analysis focussing on the best interests ofthe child and ultimately determined that she should have custody and the right to relocate to South Korea should she so wish and on 45days notice of her intention to do so. The mother says that there are no material errors in law or questions of fact and, therefore, there isno basis for arguing that a serious question remains to be tried further.

I disagree. [10] Whenever Courts consider the best interests of the child, there is a serious question to be tried. There is a low threshold that an

applicant must meet in order to satisfy this factor and, in my view, the fact that the issue is the best interests of the child necessarily means that it is a serious issue. The Plaintiff father has satisfied this part of the test for a stay. 2. & 3.

Irreparable harm/balance of convenience [ 11 ] In her judgment, Justice Browne held that the best interests of the child are served by allowing the Defendant mother to relocate to South Korea and providing the Plaintiff father with both access and a corresponding reduction in child support to account for the increased cost of his exercising access. [ 12 ] Justice Browne was satisfied that both parents had a positive and meaningful relationship with their 8-year-old son. Justice Browne recognized that the mother had tried her best to live in Canada but she has better prospects and support in South Korea.

With respect to the best interests of the child, Justice Browne was satisfied that the child’s bilingual skills and his evident capabilities (she refers to him as “a capable young man”) would allow him to adjust to life, whether it be in Canada or Korea and, if the mother chooses to live in Korea, Justice Browne found (at p. 12) that the child will certainly be able to adjust to a new life in Korea.. [ 13 ] It is clear that both parents love their son and those feelings are reciprocated by the child.

He is anxious to continue a relationship with both parents. [ 14 ] The difficulty from the perspective of both the mother and the child is the fact that they do not have adequate support in Canada. The father has been unable to adequately meet the financial needs of the mother and their son and he is in arrears of his support obligations. Indeed, in addressing the issue of costs following trial, the father himself stated: ... for me now, I lose my licence in four days, so nobody will have any money.

I will be able to – there will be zero money coming into the – to the – so she is going from a situation now, and in four days I won’t have a job. ... There will be zero money coming in. ... [ 15 ] As indicated by Justice Browne, the financial situation is not an intentional one by the father but it is, in fact, a real problem resulting in deprivations for the mother and the child. In short, it is in both her interests but more importantly in her son’s best interests that they move to South Korea.

The mother will have realistic employment opportunities which she does not have in Canada and the support of family and friends. [ 16 ] The Plaintiff father says that if the Defendant mother and the child are allowed to move to South Korea it would be very difficult to enforce an order from the Court of Appeal changing the terms of the trial judgment. He says that the mother might try to invoke the jurisdiction of the Korean Courts if she relocates and this would render orders from the Courts in Alberta unenforceable.

He further argues that it would not be undue hardship on the mother or the child as they receive “adequate income” from him. [ 17 ] While South Korea is not a signatory to the Hague Convention, there is no evidence that an order from Alberta Courts would be difficult to enforce if the mother moves to South Korea. Indeed, Justice Browne found on the evidence she heard at trial (p. 12 of her Oral Reasons) that the mother would honour an access order of an Alberta Court. I would also consider an undertaking by the mother to be bound by, and compliant with, any order of our Court of Appeal to meet any concern.

Finally, as indicated earlier, there is evidence and a finding by Justice Browne contrary to the suggestion of the father that he is providing an adequate income to the mother and their son. Justice Browne made a finding that the mother has not been properly supported financially and this translates directly to non-support for the child.

As she states at p. 11 of her decision: “The father is in arrears in his child support payments, and there is no guarantee short term or long term that he can properly support his family.” [ 18 ] The father emphasizes the fact that the child is extremely bright, with an I.Q. of 130, and is in an education program for gifted children. He says that the education system in South Korea is generally inferior to the one here and further, it would require the child to be fluent in Korean, which he presently is not. This, says the father, would result in the child being considerably behind other children of his age.

I cannot accept these concerns as valid. First, there is no evidence that the education system in South Korea is generally inferior to the one here. Second, even if it generally is, that does not mean that there are no programs suitable for a child of the capabilities that this child clearly has. Finally, as stated by Justice Browne (at p. 12 of her decision), it would be a great asset for the child to be bilingual.

[ 19 ] The father says that he has a very strong bond with his son and Justice Browne did accept that they had a good relationship. Based on the evidence she heard, Justice Browne found that access would continue to be provided by the mother if she moved to South Korea and Justice Browne directed that some of the father’s child support obligations would be set off against the increased costs of exercising his access. [ 20 ] Finally, the father speaks of the financial burden on him if the mother is allowed to move with their son to South Korea.

This, however, was addressed by Justice Browne in terms of a set off in child support obligations as compensation for the costs incurred for access.

Further set off or reduction may be considered by the Court on an application by the father due to a material change in circumstances or, possibly, hardship. [ 21 ] Other arguments raised by the father in his affidavit and submissions are more properly addressed in his appeal, and not as factors in this application. [ 22 ] In short, while the Plaintiff father has satisfied the Court that there is a serious issue to be tried on appeal, he has failed to satisfy the Court that irreparable harm will be suffered by the child in the event the stay is denied.

Indeed, it appears that there is a greater network of support for the child in South Korea and it is in his best interests that the Defendant mother be allowed to move with him and the stay application by the father be denied. In the event the mother refuses to provide an undertaking to be bound by, and comply with, any order of our Court of Appeal, the matter may be brought back before me. Heard on the 10 th day of February 2011. Delivered Orally at the City of Edmonton, Alberta this 10 th day of February 2011. Eric F. Macklin J.C.Q.B.A.

Appearances: The Plaintiff Peter Michael Sopczak appeared on his own behalf. Jonathon L. Wescott for the Defendant