2021 NLCA 18, 2021 NLCA 18

M.G. (applicant/appellant) v. S.P. (respondent) (21/03) Indexed As: M.G. v. S.P. 2021 NLCA 18 6 C.A.N.L.R. 493 Court of Appeal of Newfoundland and Labrador Hoegg J.A. March 26, 2021

Summary: M.G. applied for a stay pending determination of her appeal of a final order respecting custody of and access to her grandchild. The order under appeal granted sole custody to S.P., the child’s mother, with limited access to M.G. Held: Application dismissed. Hoegg J.A.: Application for a stay pending appeal involves a three part test. First, is there a serious issue to be tried? The second and third prongs of the test, whether the applicant will suffer irreparable harm if a stay is denied, and the balance of convenience, must be considered from the child’s perspective (paragraphs 4-5).

The first prong of the test for a stay is met (paragraphs 6-11). M.G. did not establish that the child would suffer irreparable harm if the order made by the trial judge is maintained pending the appeal (paragraphs 12-13). While it was not necessary to consider the third prong of the test, the balance of convenience favoured leaving the current parenting arrangement in place until the appeal is heard (paragraph 14). Cases cited: RJR – MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 31 P.G. v. C.C. , 2018 NLCA 73 J.H. v.

C.C. , 2019 NLCA 38 Rules considered: Court of Appeal Rules , NLR 38/16, rule 42(2) Counsel: Brian D. Wentzell, for the applicant/appellant; Ernest L. Gittens, for the respondent.

The application was heard on March 23, 2021 before Hoegg J.A. The following memorandum of disposition was filed on March 26, 2021 by Hoegg J.A. ______________________________________________________________ Hoegg J.A.: [ 1 ] M.G. applies for a stay pending determination of her appeal of a final order respecting custody and access of her seven-year-old grandchild. The order was issued by a judge of the Supreme Court of Newfoundland and Labrador on December 15, 2020, after a five- day trial.

It granted sole custody of the child to the mother, S.P., with limited access to M.G., to take effect after a three-part, nine-month transitional period of diminishing shared parenting between S.P. and M.G. [ 2 ] M.G. appealed the Judge’s decision, and two months into the transitional period, applied to stay the Judge’s order pending determination of her appeal. [ 3 ] Rule 42(2) of the Court of Appeal Rules , NLR 38/16 provides that an order under appeal can be stayed pending disposition of the appeal. [ 4 ] The law respecting stays pending appeal is well established.

To succeed, an applicant must show that: (1) there is serious issue to be tried; (2) the applicant will suffer irreparable harm if the stay is denied; and (3) the balance of convenience lies in favor of granting a stay ( RJR – McDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 31 ). [ 5 ] When the order sought to be stayed involves the custody or access of a child, irreparable harm and the balance of convenience must be considered from the child’s perspective, not from the perspectives of the parties ( P.G. v. C.C ., 2018 NLCA 73 , at para. 20 ). See also J.H. v.

C.C ., 2019 NLCA 38 , at para. 3 . [ 6 ] In this case, the child has lived almost all of his life with his paternal grandmother, M.G. The child’s mother, S.P., lived at M.G.’s home with the child and the child’s father for the first four months of the child’s life. Thereafter until 2017, S.P.’s involvement in her child’s life was minimal, sporadic, and complicated by issues respecting her ability to parent. (The child’s father passed away when the child was 20 months old.) In 2017, S.P. began to exercise supervised access to her child.

In May 2019, she was granted unsupervised access that eventually included overnight access and by November 2019, she and M.G. were co-parenting the child on a three day on – three day off schedule. [ 7 ] M.G. is a high-school teacher. She lives in Goose Bay with her partner, who plays an active and positive role in the child’s life and facilitates the child’s appreciation of his cultural heritage. There is no question that until recently, M.G. has been the primary and stable parent to the child.

She has also supported and facilitated the child’s relationship with his mother. [ 8 ] S.P. resides in a community approximately 30 km away from Goose Bay. She lives with her husband, who also plays a positive role in the child’s life, and her husband’s two young children, whom the child considers siblings. [ 9 ] M.G. argues that leaving the January 2021 order in place until the appeal is heard will cause the child irreparable emotional and mental harm.

In her supporting affidavit, she maintains that the current part of the transitional period, which adds a day to S.P.’s parenting time, has resulted in M.G. parenting the child during most of the school week while S.P.’s parenting is mostly on weekends. M.G. argues that this

schedule change is turning her into a taskmaster and leaves very little time for the child to enjoy relaxing or leisure time with her and her partner. She argues that the arrangement is harming the child’s relationship with her. M.G. also maintains that the transitional arrangement is causing the child distress, in that he complains of having a bad belly when he has to leave her custody, has crying episodes, and needs constant reassurance that his “home” is still with her and that his toys are still there.

She also says that the current transition arrangement does not give the child much opportunity to learn about and experience his Indigenous heritage, and prevents the child from having a relationship with his paternal grandfather, who lives nearby. M.G. argues that the effect of the transitional arrangement is harming the child in a way that will not be able to be remedied. [ 10 ] In response, S.P. says the child has been going through transitions his entire life and she has seen no difference between his behavior before the Judge’s January order and his behaviour at present.

She says the child and her husband’s children are being raised as siblings, one of whom is the same age as her child. S.P. also says that M.G. has not advised her of any problems the child is currently having, so she has not had an opportunity to work together with M.G. to help the child cope with the transitional arrangement. S.P. says that she has made arrangements to enroll the child in a program targeted for Indigenous children’s mental health needs and that she is seeking to have the child join an Art Therapy group as a way to cope with his feelings.

S.P. also says that she has never refused any request for the child to spend extra time with M.G. [ 11 ] Like many appeals involving the custody and access of children, M.G.’s appeal raises a serious issue to be tried. Accordingly, the first prong of the test for a stay is met. However, the second prong of the test, irreparable harm, presents a greater challenge to M.G. After considering the affidavit evidence of M.G. and S.P., and the submissions of their counsel, I am not persuaded that M.G. has established that the child is suffering irreparable harm as a result of the changes to his

schedule pursuant to the transition.

[ 12 ] Changes in custody and access arrangements often present challenges for children, and I do not doubt that the child in this case has had some difficulty adjusting to the new arrangement. The evidence before me of the child’s difficulties is from one of the involved parties. I have no independent evidence, expert or otherwise, that the child is being irreparably or even seriously harmed by the transitional

schedule changes. I also note that the first part of the transitional period is not a significant change to the amount of time the child spends with M.G. or S.P. In short, I have nothing before me that permits me to find that the difficulties the child is experiencing are serious and lasting. I do not consider them to be grave or unusual, and they may even be transitory in nature and able to be taken in stride by the child as he learns to cope with the changes life presents to him.

Accordingly, I am unable to say that the child is being irreparably harmed by the current transitional arrangements the Judge ordered. [ 13 ] I appreciate that M.G. is having difficulty adjusting from being the primary parent in the child’s life to being simply a grandmother with increasingly less access. But a stay application is not about M.G.’s challenges.

It is about whether the child is being irreparably harmed by the order under appeal. [ 14 ] While it is not necessary to consider the balance of convenience, I would nevertheless say that it favours leaving the current arrangement in place until the appeal is heard. To do otherwise would mean a reversal of the current

schedule changes with the possibility of a reversal back to the transitional

schedule changes at a later date, which would likely result in more confusion for the child. [ 15 ] In the result, I am dismissing M.G.’s application. [ 16 ] In the meantime, I would encourage M.G. and S.P. to work together to alleviate any distress the child is suffering while coping with the transition schedule, and also to provide the child with the opportunity to continue to enjoy a stable and positive relationship with M.G. [ 17 ] I make no order as to costs. Application dismissed.