R. v. L.R., 2019 NLCA 38

J.H. (applicant/appellant) v. C.C. (respondent) (19/23) Indexed As: J.H. v. C.C. 2019 NLCA 38 4 C.A.N.L.R. 529 Court of Appeal of Newfoundland and Labrador Welsh J.A. June 25, 2019

Summary: The appellant, the father of a child whose mother, the respondent, was permitted to relocate with the child applied for a stay of that order pending his appeal. Held: Application dismissed. Welsh J.A.: The test for granting a stay pending appeal involves consideration of three factors:

(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? Where the appeal involves children the test must be applied from the perspective of the best interests of the child. The appeal will be heard in July with the expectation that a decision will be provided before the commencement of school in September. Assuming the father succeeds in his appeal and the child is ordered to be returned to this Province, the child will have had, essentially, a holiday. In those circumstances the test for a stay is not satisfied. Cases cited: C.R. v.

L.R. , 2018 NLCA 58 Counsel: Appearing on his own behalf, the applicant/appellant; Marilyn Pendergast, for the respondent. This application was heard on June 25, 2019 before Welsh J.A. The following judgment was filed on June 25, 2019 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] On January 29, 2019, the mother’s application to relocate with her child to Alberta was granted by a judge of the Supreme Court, Family Division. To facilitate the child, who is nine years old, attending school, the judge ordered that the relocation could not occur until July 15, 2019.

The father filed a notice of appeal on February 27, 2019. On June 17, 2019, he applied for a stay of enforcement of the order permitting the mother to relocate with the child.

[ 2 ] At the hearing, the application for a stay was dismissed and the appeal was set to be heard on July 17, 2019. [ 3 ] The test that I applied in analyzing the application for the stay is set out in C.R. v. L.R . , 2018 NLCA 58 :

(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? Most importantly, as set out in paragraph 4 of that decision: 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. [ 4 ] In this case, as could be expected, the mother has purchased tickets for travel with her child to Alberta on July 15, 2019. The appeal will be heard on July 17, 2019 with the expectation that a decision will be provided before the commencement of school in September.

Assuming the father succeeds in his appeal and the child is ordered to be returned to this Province, the child will have had, essentially, a holiday. In the circumstances, the best interests of the child are served by denying the application for a stay. Neither of the parties nor the child will suffer irreparable harm as a result, and the balance of convenience lies with permitting the mother to proceed with the relocation on July 15 th . [ 5 ] In the result, the application for a stay of enforcement of the order was dismissed with costs of the application to be costs in the cause of the appeal.

Application dismissed.