R. v. L.R., 2018 NLCA 58

C.R. (applicant/appellant) v. L.R. (respondent) (18/89) Indexed As: C.R. v. L.R. 2018 NLCA 58 3 C.A.N.L.R. 404 Court of Appeal of Newfoundland and Labrador Welsh J.A. October 10, 2018

Summary: The parties were separated parents of a child who had a parenting order in place. The father changed the child’s school. The mother challenged that decision. A judge of the Supreme Court of Newfoundland and Labrador allowed her application, finding the father failed to follow the procedural requirements of the parenting order. The father appealed and applied for a stay pending appeal pursuant to rule 42 of the Court of Appeal Rules . Held: Application dismissed. Welsh J.A.: The test for a stay pending appeal generally has three prongs:

(1) Is there a serious issue to be tried 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 decision under appeal relates to a child the test will be applied from the perspective of the best interests of the child. The child had already changed schools several times due to the proceedings. The balance of convenience, viewed through the lens of the best interests of this child, strongly favoured denying the application for a stay. Further disruption in the child’s education flowing from the changing of schools is to be avoided. Cases cited: B.(C.) v.

S.(N.) , 2014 NLCA 51 Counsel: Appearing on their own behalf, the applicant/appellant; Alexandra Kindervater, for the respondent. This application was heard and decision rendered orally on October 9, 2018 by Welsh J.A. The following memorandum of disposition was filed on October 10, 2018 by Welsh J.A. ______________________________________________________________ Welsh J.A.:

Welsh J.A.: [ 1 ] Mr. R. filed a notice of appeal against the order of a judge of the Supreme Court of Newfoundland and Labrador, Family Division, regarding the school that his child, who has disabilities, shall attend.

Particulars regarding educational and medical care for the child are set out in a parenting order contained in a February 12, 2016 decision (2016 NLTD(F) 4): [62] The appropriate parenting order is as follows: … 2) Both parents shall consult with the other prior to making major decisions, such as those related to health, religious upbringing, education and extra-curricular activities of the children, and shall attempt to make their decisions by consensus. … If the parents are unable to agree on major decisions relating to the children’s medical care or treatment, the mother’s decision shall prevail.

Major decisions affecting the children’s educational programming, including psychological assessment or testing, school choice or tutors, shall be done by the parents in consultation with the children’s homeroom teacher and other professionals involved with the children’s education. If the parents are unable to agree on major decisions related to the children’s education, the father’s decision shall prevail. 3) Before making any final decision in their area of decision-making, each parent shall inform the other of their intended decision.

They shall consult with one another in regard to any and all major decisions and shall seek the other’s input in areas in which they have authority. It is only after this consultation process has occurred that the party with final authority shall be able to make a decision and, upon doing so, shall immediately inform the other party of the decision that he or she has made.

Neither parent shall be entitled to make a major decision in their area of decision-making without first giving the other parent 30 days written notice. [ 2 ] During the 2017-2018 school year, the child, who is now enrolled in a grade three class, attended Cape St. Francis Elementary School. However, early in the 2018-2019 school year, Mr. R. had the child transferred to Holy Trinity School. By means of an application to the Family Division, Ms. R. challenged that decision. The judge allowed the application on the basis that Mr. R. failed to follow the procedural requirements of the parenting order.

In the result, the judge made the following interim order: 1. [The child] shall remain at Cape St. Francis Elementary School for the 2018-2019 school year; 2. In the event [named student assistant] returns to her employment at Cape St. Francis Elementary School and the school does not satisfy both parents that sufficient precautions are in place to ensure [the child’s] safety, [Mr. R.] may make an Interim Application to determine whether or not there is any risk of harm to [the child] if she remains at Cape St. Francis Elementary School for the duration of the 2018-2019 school year; 3.

For the 2019-2020 school year, provided he follows both the notice requirement and the requirement to consult with professionals involved in [the child’s] education, as set out in the Parenting Order dated May 9, 2016, [Mr. R.] is permitted to change [the child’s] school in accordance with the terms of the Parenting Order. [ 3 ] Having filed a notice of appeal, Mr. R. applied for a stay of enforcement of this order ( rule 42 of the Court of Appeal Rules , NLR 38/16).

After considering the written and oral submissions of the parties, I dismissed that application. [ 4 ] The test to be applied in analyzing an application for a stay of enforcement of an order involving a child is set out in B.(C.) v. S. (N.) , 2014 NLCA 51 : [11] The test to be applied in determining whether a stay should be granted where custody of and access to a child are at issue is discussed in E.(R.) v. G.(N.) , 2010 NLCA 60 , 301 Nfld. & P.E.I.R. 240 (N.L.C.A.) . The test for a stay generally has three prongs:

(1) Is there a serious issue to be tried 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.) , paramountcy of the best interests of the child is engaged, with the result that the test will be applied from that perspective. [ 5 ] In this case, the child attended Cape St. Francis Elementary School for approximately two weeks at the beginning of the school year, then was transferred at Mr. R.’s instance to Holy Trinity School which she attended for approximately one week, after which, pursuant to the Court order, she returned to Cape St. Francis School.

If a stay had been granted, the child would have returned to Holy Trinity School to await the results of an appeal. If the appeal was unsuccessful, the child would change schools once again. [ 6 ] In the circumstances, I was satisfied that the balance of convenience, viewed through the lens of the best interests of this child, strongly favoured denying the application for a stay. Further disruption in the child’s education flowing from the changing of schools is to be avoided. [ 7 ] Accordingly, I dismissed Mr. R.’s application for a stay of enforcement of the above interim order, with costs in the cause.

Application dismissed.