2020 NLCA 15, 2020 NLCA 15

A.H. (applicant/appellant) v. R.B. (respondent) (19/63) Indexed As: A.H. v. R.B. 2020 NLCA 15 5 C.A.N.L.R. 431 Court of Appeal of Newfoundland and Labrador Welsh J.A. April 23, 2020

Summary: A.H. applied for a stay of enforcement pending the disposition of the appeal of a final order regarding parenting and child support. Held: Application dismissed. Welsh J.A.: While there may be a serious issue to be addressed on appeal, the second and third components of the test for a stay of enforcement were not satisfied. There was no evidence that the child would have suffered irreparable harm if the parenting

schedule in place was maintained pending disposition of the appeal. The balance of convenience favoured maintaining the

schedule that had been in place for an extended period of time. As such, the application or a stay of enforcement of the order pending disposition of the appeal was denied (paragraphs 1-10). Cases cited: J.H. v. C.C. , 2019 NLCA 38 , 4 C.A.N.L.R. 529 Rules considered: Court of Appeal Rules , NLR 38/16, rule 42(2) Counsel: Appearing on her own behalf, the applicant/appellant; Amanda Summers, for the respondent. The application was heard on April 22, 2020 before Welsh J.A.

The following judgment was filed on April 23, 2020 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] This is an application for a stay of enforcement of a final order made by a judge of the Supreme Court of Newfoundland and Labrador, Family Division. The order, made after a trial, addresses parenting and child support issues regarding one child who is now three years of age. [ 2 ] Rule 42(2) of the Court of Appeal Rules , NLR 38/16 provides for a stay of enforcement of an order pending disposition of an appeal. The test to be

applied in assessing an application for a stay where the appeal involves a child is set out in J.H. v. C.C . , 2019 NLCA 38 : [ 3 ] ...

(1) Is there a serious issue under appeal in the sense that the appeal is not frivolous?

(2) Will a party suffer irreparable harm if the stay is denied?

(3) Where does the balance of convenience lie? ... When the decision under appeal relates to a child, as stated in G.(N.) [2010 NLCA 60], paramountcy of the best interests of the child is engaged, with the result that the test will be applied from that perspective. [3] In this case, the appellant, the child’s mother (the “mother”) has applied for a stay of enforcement of the trial judge’s order. In his decision, dated May 17, 2019, the judge summarized ( 2019 NLSC 103 ): [8] I order that the parents continue with the existing parenting

schedule until August 16, 2021, the month before [the child] turns five. At that time, the parents shall share parenting on a 2-2-3 rotation. [ 4 ] The existing parenting

schedule was ordered by interim decision dated December 6, 2018 when the child was two and one-half years old. Prior to the change ordered by that decision, the child’s father (the “father”) had unsupervised parenting for three hours on Tuesdays and Thursdays and four hours on Sundays.

As a result of the interim decision, shared parenting was ordered together with a transition period, ending on February 2, 2019, when the order provided for the child to be with his father for parenting from 8:30 a.m. on Saturdays to 8:30 a.m. on Sundays, from 5:30 p.m. on Tuesdays to 5:30 p.m. on Wednesdays, and from 8:30 a.m. on Thursdays to 8:30 a.m. on Fridays. The remaining time would be with his mother. That is the

schedule that was ordered after trial pursuant to the May 17, 2019 final decision. It is the

schedule that, in fact, has been in place since February 2, 2019 as a result of the interim order. [ 5 ] The mother filed a notice of appeal against that decision and an application to stay the enforcement of the order. As part of the May 17, 2019 decision, the judge also made orders regarding child support and costs. However, the application for a stay is directed only to the question of parenting the child. [ 6 ] The mother submits that her child is struggling with the parenting

schedule with resulting sleep and behavioural problems. She submits that, as a result, the child is suffering irreparable physical, psychological and emotional harm, and that the current situation is not in the child’s best interests. She concedes that the child has formed a positive bond with his father, and suggests a partial stay of the order whereby the father would parent the child for two and one-half hours on Mondays and Wednesdays and for one day on the weekend. [ 7 ] Counsel for the father submits that the issues of concern to the mother were raised at trial and considered by the trial judge. As well, the child has now been on the current parenting

schedule since February 2, 2019. He submits that, to alter the

schedule at this time would not be in the child’s best interests. [ 8 ] I agree with the submissions of the father. The appeal is set to be heard September 14, 2020. To alter the parenting

schedule at this time has the potential for additional disruption for the child should the appeal fail. There was no evidential basis provided for the mother’s suggested option of reducing the father’s parenting time. The mother indicated her main concern is with the child sleeping at his father’s house. However, her suggestion has the effect of reducing the father’s parenting time to little more than he had prior to the order for shared parenting. The current parenting

schedule has been in place for more than a year. If the mother is of the view that there has been a material change in circumstances that would support an adjustment to the schedule, she has the option of proceeding with an application in the Supreme Court, Family Division. [ 9 ] In the result, assuming that there is a serious issue on appeal, I am satisfied that the second and third components of the test have not been satisfied. Other than the mother’s view, there is no evidence that the child will suffer irreparable harm if the current parenting

schedule is maintained pending disposition of the appeal. In addition, the balance of convenience favours maintaining the

schedule that has been in place for an extended period. [ 10 ] Accordingly, the application for a stay of enforcement of the order pending disposition of the appeal is denied, with costs in the cause of the appeal. Application dismissed.