2018 NLCA 21, 2018 NLCA 21

E.M. (applicant/appellant) v. Y.C. (respondent) (18/13) Indexed As: E.M. v. Y.C. 2018 NLCA 21 2 C.A.N.L.R. 665 Court of Appeal of Newfoundland and Labrador Hoegg J.A. April 18, 2018 PUBLICATION BAN: There is a publication ban on the names of all children referred to herein as well as the names of any personwho could identify the said children.

Summary: E.M. appealed an order of the Supreme Court Trial Division - Family, which permitted the respondent Y.C. to relocate to Montreal withthe parties’ daughter. He applied for a stay pending appeal. Held: Application dismissed. Hoegg J.A.: The test for staying the enforcement of judgments has three parts: (

i) whether there is a serious issue to be tried; (ii) whetherthe applicant will suffer irreparable harm if the stay is not granted; and (iii) whether the balance of convenience between the partiesfavours the granting of the stay. However, when the test is applied in custody and access cases, the best interests of the child is aconsideration. The submissions of Mr. M., who was self-represented, were largely irrelevant to the criteria he had to meet in order to obtain a stay. Hissubmission did not touch on how his child’s best interests could be affected by the move to Quebec.

Nor did it clarify or explain hisgrounds of appeal so as to convince the Court that they were triable, or address the issues of irreparable harm and balance ofconvenience. Mr. M. did not establish that there is a serious issue to be tried on his appeal. Thus the application was denied. The Court also made an order permitting Y.C. to access E.M.’s schooling records, to facilitate the registration of the child in ananglophone school in Quebec. Cases cited: Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 RJR - MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 R.E. v.

N.G., 2010 NLCA 60, 301 Nfld. & P.E.I.R. 240 Counsel: Appearing on his own behalf, the applicant/appellant; Caitlin Urquhart, for the respondent.

This application was heard and decision rendered orally on April 10, 2018 by Hoegg J.A. The following Memorandum of Disposition was filed on April 18, 2018 by Hoegg J.A. ______________________________________________________________ Hoegg J.A.: [1] E.M. applied to stay the decision of a Supreme Court Family Division Judge which permitted his child to relocate to Quebecwith her mother, Y.C. Ms. C. was awarded sole custody and Mr. M. was awarded limited supervised access of their child approximatelyfour years ago. Mr.

M. initially exercised short supervised access but there was a complete hiatus of three years or so before he resumedSkype access immediately before Ms. C.’s mobility application was heard in January 2018. [2] After a two-day hearing in January 2018, the Family Division Judge ordered that Ms. C. could relocate immediately with thechild to the province of Quebec. The Judge set out a precise and detailed

schedule for Mr. M.’s limited supervised Skype access andlimited supervised in-person access to be exercised in Quebec if Mr. M. desired. [3] The Judge gave reasons for granting Ms. C.’s mobility application. In pertinent part, he said: [63] The father has seen his daughter by Skype two times in 2018 and before that there has been little or no contact between the fatherand L. since January 2015. Before that time, contact was limited to short supervised visits. L. has not lived with her father or, for thatmatter, even been alone in his presence for many years.

The father, other than bringing on an application to Court, took no serious actionto have contact with his daughter. … [74] The father has demonstrated no basis to support a change in custody and indeed he does not want custody. Therefore, the Court hasno option to order such a change, nor would it do so if he was willing to accept custody. … [79] Finally, the father offers no evidence on why he thought his access exercised only in person in St. John’s would be in his child’sbest interests.

His evidence was about what he would like to do and all about activities with his daughter which focused almostexclusively on athletics. He did not offer any evidence about the possible advantages or disadvantages for his child if she lived inMontreal. His evidence was all about how the move might affect him. [80] It does not appear to me that the father is prepared to make meaningful sacrifice for his daughter. In particular, I am disturbed byhis apparent ability to finance in some manner [his] athletic trips and memberships while claiming he is unable to offer any child supportfor his daughter.

The Stay Application [4] Mr. M. appeals the Judge’s order, and in this application is seeking it be stayed. As grounds of appeal, he asserts that there wasa mix-up of facts pertaining to his evidence at the trial regarding the advantages and disadvantages of the move for his child and that theJudge misinterpreted his position on custody in regards to the law as set out in Gordon v. Goertz, (SCC), [1996] 2S.C.R. 27. His appeal requests the Judge’s decision be reversed and an earlier order of the Family Court giving sole custody of the childto Ms. C. with limited “fully” supervised access to Mr.

M. with no permission for the child to relocate to another province be restored. Inhis stay application he expresses fear that Ms. C. will move to China and he will never see his child again. [5] The tripartite test for staying the enforcement of judgments was established by the Supreme Court in RJR - MacDonald Inc. v.Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311. In R.E. v. N.G., 2010 NLCA 60, 301 Nfld. & P.E.I.R. 240,this Court, like other Canadian appellate courts, adapted that test to custody and access cases by including the best interests of the childas a consideration, saying at paragraph 33: (

a) the test generally should be applied from the perspective of the best interests of the child; (

b) as to the first prong, assessment of whether there is a serious issue on appeal should be undertaken bearing in mind that custodydecisions are essentially fact driven and depend to a great extent on the trial judge’s overall assessment of where the best interests of thechild lie; (

c) as to the second and third prongs, the questions of irreparable harm and balance of convenience must be considered from theperspective of the best interests of the child, not the parties and it is the potential for serious risk of irreparable harm to the child that isthe primary consideration; (

d) circumstances of a special and persuasive nature in relation to the best interests of the child, usually connected to the risk to harm,must be demonstrated by the applicant. [6] Mr. M. represented himself on this application although he was represented by counsel at the hearing of Ms. C.’s mobilityapplication. At the commencement of the hearing of this application, I explained to Mr. M. the test he had to meet to obtain a stay of theFamily Division judgment.

[ 7 ] In his submission in this Court Mr. M. did not elaborate, or even attempt to elaborate, on how it was that the Judge misapplied the principles set out in Gordon . On review of the Judge’s decision and the record before me, it was not apparent to me that he had done so. Neither did Mr. M. elaborate on or explain how the Judge “mixed up the facts” respecting Mr. M.’s position on custody. In this regard I note the Judge’s statement that Mr. M. was not seeking custody. As well, the documentation Mr.

M. filed at the Family Division and in this Court does not suggest that he was or is interested in custody of his child. Mr. M. also did not address how his concern that Ms. C. would move out of the country with their child touched on his stay application or on his appeal. Instead, Mr. M. submitted that he had, in his view, enjoyed a good relationship with his child in the years prior to the earlier Family Court decision giving sole custody to Ms. C. He said that he had given his child toys, and that his child had a “right to play” as enshrined, according to him, in a United Nations declaration.

His emphasis on his child’s right to play appeared to stem from information he said was conveyed to him by the child via Skype that her mother had limited her time playing with toys. Mr. M. acknowledged that he had never paid child support. Mr. M. also volunteered to the Court that he had been recently declared fit to stand trial in relation to pending criminal charges and that he has certificates stating that he has successfully completed anger management courses. [ 8 ] The submissions of Mr. M. were largely irrelevant to the criteria he had to meet in order to obtain a stay.

His submission did not touch on how his child’s best interests could be affected by the move to Quebec. Nor did it clarify or explain his grounds of appeal so as to convince me that they are triable. He did acknowledge that his child should be with Ms. C. and that Ms. C. “had done a good job with” her. [ 9 ] Mr. M.’s position did not address, in any way, the issues of irreparable harm and balance of convenience from his child’s perspective which could inform this Court’s decision on his stay application. [ 10 ] In the above circumstances, I was satisfied that Mr.

M. had not established that there is a serious issue to be tried on his appeal. Accordingly, I denied his application for a stay, although I explained to Mr. M. that he still has the right to argue his appeal. [ 11 ] During the hearing an issue arose respecting the child’s ability to attend English school in the province of Quebec. The Family Division Judge had expressly ordered that Ms. C. was permitted “provide a letter of English Primary Education on behalf of both parents to the appropriate Quebec authorities” so as to enable the child to be educated in English in Quebec. This was because Mr.

M. had failed to provide, despite requests, a letter from the Newfoundland and Labrador English School District verifying that he had received his primary education in English. (Quebec authorities require proof that one parent has received his or her primary education in English in order to have a child registered in the Quebec English school system. Ms. C. is unable to provide such proof as her primary education was in Chinese.) [ 12 ] At the hearing in this Court, Mr. M. provided counsel for Ms. C. with a letter from Newfoundland school authorities.

However, counsel was uncertain whether the letter provided would satisfy the Quebec authorities. Accordingly, counsel made an application to this Court on Ms. C.’s behalf for an order that Ms. C. be able to obtain information respecting Mr. M.’s schooling in the English language and that his birth was registered in this province from Newfoundland government and school authorities without Mr. M.’s consent, so as to satisfy the Quebec authorities. Mr. M. did not object. I granted Ms. C.’s request. Counsel may draft an order in this regard. [ 13 ] In the result, I dismissed Mr. M.’s stay application.

Application dismissed .