2020 NLCA 21, 2020 NLCA 21

M.J.B. (applicant/appellant) v. C.A.B. (respondent) (20/37) Indexed As: M.J.B. v. C.A.B. 2020 NLCA 21 5 C.A.N.L.R. 555 Court of Appeal of Newfoundland and Labrador Welsh J.A. June 9, 2020

Summary: M.J.B. applied for a stay of enforcement of a parenting order pending the disposition of the appeal. Held: Application dismissed. Welsh J.A.: A stay of enforcement of the order was not in the best interests of the children. While the appeal was not characterized as frivolous, it could not be said that irreparable harm would be suffered if the stay was denied. Finally, the balance of convenience lay with permitting the matters in the Family Court to proceed (paragraphs 1-7). 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 Counsel: Appearing on her own behalf, the applicant/appellant; Appearing on his own behalf, the respondent. The application was heard and decision rendered orally on June 9, 2020 by Welsh J.A.

The following memorandum of disposition was filed on June 10, 2020 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] M.J.B. applied for a stay of enforcement of an order relating to shared parenting of two of her children pending disposition of the appeal ( rule 42 of the Court of Appeal Rules , NLR 38/16 ). [ 2 ] At the hearing, after considering the parties’ written and oral submissions, I dismissed the application. [ 3 ] The only portion of the order that could be affected by a stay of enforcement is eight days of compensatory parenting time for

the father. The order continues the seven-day rotation parenting

schedule that was already in place. The parties agreed that the children have not been with their father since March 9, 2020. The dates set for the compensatory parenting time have passed. [ 4 ] These factors must be considered in the context of the continuing litigation in the Supreme Court, Family Division. The father has applied to that Court for an order for contempt based on the mother’s failure to comply with the parenting schedule.

The order for compensatory parenting time, being time that has already expired, is part of the contempt application. [ 5 ] 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 , 301 Nfld. & P.E.I.R. 240 ], paramountcy of the best interests of the child is engaged, with the result that the test will be applied from that perspective. [ 6 ] In this case, while I would not characterize the appeal as frivolous, the second and third components of the test lead to the conclusion that a stay would not be in the best interests of the children. The eight days of compensatory parenting time did not take place when ordered, and the time has passed. The seven-day rotation parenting

schedule that had been in place was not varied by the order under appeal. Finally, the balance of convenience lies with permitting the matters in the Family Court to proceed. The children have not been with their father for many weeks. The appeal will take time to perfect and be heard. [ 7 ] In the result, I was satisfied that a stay of enforcement of the order was not in the best interests of the children and did not meet the test to be applied. Accordingly, I dismissed the application with costs in the cause of the appeal. Application Dismissed.