2022 NLCA 4, 2022 NLCA 4

K.M.F. (applicant/appellant) v. J.M.F. (respondent) (21/71 and 21/72) Indexed as: K.M.F. v. J.M.F. 2022 NLCA 4 7 C.A.N.L.R. 231 Court of Appeal of Newfoundland and Labrador Hoegg J.A. December 14, 2021

Summary: K.M.F. (the mother) and J.M.F. (the father) lived in Boston, Massachusetts, U.S.A, with their daughter. With the father’s consent themother and daughter travelled to St John’s Newfoundland and Labrador in the summer of 2020. It was eventually decided between theparents that the daughter would stay with her mother in St John’s to complete grade one for the 2020-2021 school year so that she couldattend in-person learning. The father visited the mother and daughter for extended periods of time between the summer of 2020 and thesummer of 2021.

During the summer of 2021 the mother informed the father that she had applied for a divorce and wished for thedaughter to remain with her in St John’s. The father applied to have the daughter returned to Boston under the Convention on the CivilAspects of International Child Abduction (the Hague Convention). Muzychka J. of the Supreme of Newfoundland and Labrador (FamilyDivision), granted the father’s application on the grounds that the daughter’s habitual residence was in Boston and none of the HagueConvention exceptions applied to justify not returning the child to Boston.

The mother appealed the order and made an application tostay enforcement of the order pending determination of the appeal. Held: Application granted. Hoegg J.A.: The test for staying the enforcement of a court order under appeal was set out in RJR-MacDonald Inc. v. Canada (AttorneyGeneral), (SCC), [1994] 1 S.C.R. 311. The three part test requires the Applicant to demonstrate (1) that there is aserious issue to be tried on appeal, (2) the applicant will suffer irreparable harm if a stay is not granted, and (3) the balance ofconvenience must favour the applicant’s position (paragraphs 1-2).

The nature of the test for the granting of a stay is not altered by the fact that the case involves an order under the Hague Convention(paragraphs 8-10). The Applicant has demonstrated that there is a serious issue to be tried on appeal (paragraph 11). The Applicant has also demonstratedthat she will suffer irreparable harm if the stay is not granted (paragraph 12). The balance of convenience favours the granting of a stay(paragraphs 13-19). Cases cited: RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 J.(D.L.) v. M.(V.), 2004 NLCA 49 Weir’s Construction Limited v.

Warford Estate, 2016 NLCA 65, 1 C.A.N.L.R. 282 Rees v. Fong, 2017 NLCA 43, 2 C.A.N.L.R. 95 E.M. v. Y.C., 2018 NLCA 21, 2 C.A.N.L.R. 665 J.E.A. v. C.L.M., 2002 NSCA 95 C.C.O. v. J.J.V., 2019 ABCA 292

Pollastro v. Pollastro, 1998 O.J. No. 4753 Maharaj v. Maharaj, (ON CA), [2001] O.J. No. 1875 (ONCA) C.(A.F.) v. M.(G.), [1999] O.J. No. 2657 J.P.B. v. C.B., 2016 ONCA 996 H.E. v. M.M., 2015 ONCA 244 Thomson v. Thomson, (SCC), [1994] 3 S.C.R. 551 F. v. N., 2021 ONCA 614, leave to appeal to SCC granted, 39875 (2 December 2021) Statutes considered: Children’s Law Act, RSNL 1990, c. C-13 at

section 54 Rules considered: Court of Appeal Rules, rule 42(2) Other: Convention on the Civil Aspects of International Child Abduction, 25 October 1980, UNTS 22514 (entered into force 1 December 1983) Counsel: Jean V. Dawe Q.C., for the applicant/appellant; Andrew A. Fitzgerald and Sarah M. Learmonth, for the respondent. The application was heard on December 13 and 14, 2021, with decision given orally by Hoegg J.A. on December 14, 2021.

The following judgment was filed on January 14, 2022 by Hoegg J.A. ______________________________________________________________ Hoegg J.A.: Introduction [1] On November 9, 2021 a Judge of the Family Division of the Supreme Court of Newfoundland and Labrador at St. John’sordered the immediate return of a seven-year-old girl to Boston, Massachusetts, U.S.A. no later than November 16, 2021 so that mattersconcerning her parenting would be determined by the Massachusetts Courts.

The order resulted from an application of the child’s fatherunder the Convention on the Civil Aspects of International Child Abduction, commonly known as the Hague Convention, to have thechild returned to Massachusetts so that her parenting would be decided there. The child’s mother is appealing the Judge’s order. Shefiled an application to stay enforcement of the return order pending determination of her appeal, which was heard on December 13 and14, 2021. I ordered a stay with written reasons to follow. These are those reasons. [2] The Hague Convention is an international treaty to which Canada is a signatory.

It is incorporated into Newfoundland andLabrador law by virtue of

section 54 of the Children’s Law Act, RSNL 1990 c. C-13. Background [3] Rule 42(2) of the Court of Appeal Rules allows a party to apply to this Court to stay the enforcement of a Supreme Court orderunder appeal. [4] Father, mother and daughter came to this province to visit the mother’s parents in the summer of 2020. Mother and daughterhave been living here ever since. The father lived here with his wife and daughter for several months between the summer of 2020 and

the summer of 2021, when he returned to Massachusetts. Shortly thereafter, the mother advised the father that she wished to end themarriage and remain in Newfoundland and Labrador with their child. She filed divorce and parenting proceedings in the Family Divisionof the Supreme Court of Newfoundland and Labrador, seeking joint custody of the child with her primary residence to be inNewfoundland and Labrador with her mother and liberal access to her father.

I was advised that since her father returned toMassachusetts, the child has been enjoying liberal access to him by way of telephone and Skype, and that she saw him frequently whenhe was in St. John’s in October 2021 for the hearing of his Hague application. [5] In her appeal, the mother alleges that the Judge made several errors in ordering the child’s return to Massachusetts. The allegederrors of law and mixed fact and law go to the root of the Judge’s analysis respecting the child’s place of habitual residence and theexceptions to ordering the return of a child under the provisions of the Hague Convention.

Errors respecting the admissibility andtreatment of evidence and trial fairness are also alleged. Issue [6] The test for staying the enforcement of a court order under appeal was set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311. That test was applied by this Court in J.(D.L.) v. M.(V.) 2004, NLCA 49, a decision which stayed a Family Court order for the return of a child to the United States pursuant tothe provisions of the Hague Convention, and it has been applied routinely by this Court in other civil matters (See Weir’s ConstructionLimited v.

Warford Estate, 2016 NLCA 65, Rees v. Fong, 2017 NLCA 43, and E.M. v. Y.C., 2018 NLCA 21). [7] The test requires an applicant/appellant to demonstrate that:

(1) There is a serious issue to be tried on appeal;

(2) He or she will suffer irreparable harm if a stay is not granted; and

(3) The balance of convenience must favour his or her position. Analysis [8] The requirement to establish that there is a serious issue to be tried is generally regarded as a low bar (RJR-MacDonald at para.54). Put another way, the merits of the appeal must not be frivolous or vexatious (Weir’s Construction at para. 16) and put yet anotherway, the appeal must raise an arguable issue (J.E.A. v. C.L.M., 2002 NSCA 95 at para. 31). [9] In C.C.O. v.

J.J.V., 2019 ABCA 292, the Alberta Court of Appeal suggested that an application to stay a decision made under theHague Convention involves consideration of the policies and objectives of the Convention, and that the test an applicant must meet insuch a case is elevated beyond a “serious issue to be tried” to something close to a “good chance of success” on appeal (see paras. 24-25and 28). This argument was made in Pollastro v. Pollastro, 1998 O.J.

No. 4753, wherein the Ontario Court of Appeal decided that “theprompt return of children” in appropriate cases did not translate into a more stringent test on a stay application (see para. 3). [10] I am not persuaded that the policies and objectives of the Hague Convention and Canada’s international treaty obligations alterthe test for staying the enforcement of an order made pursuant to the Hague Convention. To my mind, these factors appropriatelyinform the merits of an appeal rather than a stay application.

Serious Issue to be Tried [11] I have reviewed the mother’s Notice of Appeal and the limited record before me, and considered the submissions of the parties. In my view, the mother’s grounds of appeal are neither frivolous nor vexatious; they are arguable, and raise serious issues. Accordingly,they meet the “serious issue to be tried” criterion of the test. I also note that the father acknowledges that this criterion of the test is met. Irreparable Harm [12] The second part of the test is that an applicant/appellant must demonstrate that irreparable harm will ensue if the Court does notgrant the requested stay.

In this regard, the mother argued that her appeal would be rendered nugatory if this Court did not grant a stay. This criterion was held to be satisfied on this basis by this Court in JDL v. MV (at para. 10). (See also J.E.A. at para. 32, Pollastro atpara. 2, Maharaj v. Maharaj, (ON CA), [2001] O.J. No. 1875 (ONCA) at para. 14, and C.(A.F.) v. M.(G.), [1999]O.J. No. 2657 at para. 2). I agree that denying a stay would effectively render the mother’s appeal nugatory. It would also effectivelyabrogate her right to a remedy that could follow a successful appeal. Accordingly, irreparable harm was established.

Balance of Convenience [13] As for the balance of convenience, or as some say, the balance of inconvenience, I see conveniences and inconveniences for bothparties. However, in my view the balance tips in favour of staying the return order. [14] The mother and child have lived with the mother’s parents in a stable and comfortable arrangement in St. John’s for the past yearand one-half. The father occupies the couple’s former living quarters in Boston.

If the stay were not granted, it appeared that the motherwould be required to make other living arrangements if she were to return to Boston with the child pending determination parenting inMassachusetts. While the mother stated at trial that she would not return to Boston to live with the father, there is nothing before mesaying that she would not return to Boston with her child to resolve parenting arrangements should that be so ordered. On this point,accommodations have been made available to the father in St.

John’s by the mother’s family should he wish to visit the child herepending the determination of her parenting. While it is understandable that this arrangement may not be entirely comfortable for him, itis available to him. Further, it appears that the father is in a better financial position to travel than the mother is, for she is no longerworking. The mother also has health issues which could complicate travel for her.

[15] The father suggested that the mother’s desire to have the parenting of their child decided in Newfoundland and Labrador is a playfor hometown advantage. I do not accept that argument. I have not been shown that the law respecting the parenting of children differssubstantially between Newfoundland and Labrador and Massachusetts such that having the case decided in the Newfoundland andLabrador courts would advantage the mother.

Moreover, I am of the view that the Newfoundland and Labrador courts will make theirdecisions respecting both the litigants and the child in accordance with the law. [16] There are also conveniences and inconveniences for the child, to the extent that her interests, beyond the requirement to establishan intolerable situation or grave risk of harm set out in

Article 13(b), may, and I emphasize may, be considered on a stay application. Inthis regard, I am aware of the Ontario Court of Appeal decision in J.P.B. v. C.B., 2016 ONCA 996, wherein the interests and potentialharm to the child involved were considered on a stay application under the provisions of the Hague Convention (see para. 33). I alsonote comments from the same court in H.E. v. M.M., 2015 ONCA 244, a non-Hague case, respecting the importance of transition termsand care plans for children when the staying of a return order is sought (see para. 12).

Further, I note the comments of the SupremeCourt of Canada in Thomson v. Thomson (SCC), [1994] 3 S.C.R. 551 at para. 138, to the effect that reasonable transitionterms and a plan of care demonstrate regard for the child’s interests. Further still, I note that whether a child’s best interests are to beconsidered in an application to return a child to a former jurisdiction is an issue currently before the Supreme Court of Canada, albeit in anon-Hague Convention case (see F. v.

N., 2021 ONCA 614, leave to appeal to SCC granted, 39875 (2 December 2021)). [17] To the extent that the interests and potential harm to a child are relevant to this criterion, I see the balance of convenience for thechild as favouring a stay of the return order and having the appeal heard in Newfoundland and Labrador. I had no evidence of a plan forthe child’s care by the father in Massachusetts.

The affidavit evidence from the father respecting the child’s return was limited to himhaving arranged for her registration in the school she attended two years ago and his having made an inquiry about the child being ableto continue with her horseback riding lessons in Boston. I do note that the child’s loss of in-person contact with her father cannot bediscounted. On the other hand, the affidavit evidence respecting the child’s care and life in St.

John’s was that she was settled into astable living situation with family, had made friends, was well into her second year of school, and was involved in extra-curricular andother community activities. [18] All things considered, I see the balance of convenience as tipping in favour of a stay. If I am wrong in my consideration of theconveniences and inconveniences of the child, in the absence of such considerations I would still see the balance of convenience astipping in favour of a stay.

In any event, any inconveniences for the parties are tempered somewhat by the fact than an early hearingdate for the mother’s appeal has been set. [19] For the above reasons, I granted the mother’s application for a stay of the decision in 202102F0464 and set February 10 and 11,2022 for the hearing of her appeal. Application granted.