2017 NLCA 53, 2017 NLCA 53

Robert Ring (applicant/appellant) v. Amanda (Ring) Walsh (respondent) (17/71) Indexed As: Ring v. Walsh 2017 NLCA 53 2 C.A.N.L.R. 172 Court of Appeal of Newfoundland and Labrador Barry J.A. September 5, 2017

Summary: The parties were in the process of a divorce and could not agree on the school which their child should attend. When the Unified Family Court issued a pre-trial ruling which ordered that the child should go to the French immersion school chosen by the mother, as opposed to the homogenous francophone school chosen by the father, he appealed. He also applied under Rule 42(2) of the Court of Appeal Rules , NLR 38/16 , to stay the enforcement of the order pending appeal. Held: Application dismissed.

Barry J.A.: The father’s appeal alleged errors of fact and law on the part of the applications judge arising from a failure to: place proper weight upon a prior verbal agreement of the parties before separation to have the child enrolled in the father’s choice of school; properly consider the transportation difficulties created for the father; and find that attending a francophone school in an English majority environment is different and better than French immersion in an anglophone school.

The test to be applied on an application for a stay pending appeal has three parts: first, whether there is a serious issue to be tried on appeal; second, whether irreparable harm will result if a stay is not granted; and third, the Court should assess the balance of convenience between the parties. In applying that test to custody and access cases, the best interests of the child must be considered.

An appellate court should not interfere with an interim order unless it is demonstrated that the trial judge erred in principle or overlooked or disregarded material evidence and ended up making an order which otherwise would not have been made. The father had satisfied the first prong of the test for a stay and was not raising a frivolous or vexatious issue on appeal, although the mother had not had adequate time to prepare for the stay application due to the abridging of the notice period. However, the father had not demonstrated irreparable harm.

Based upon the calendar of the Court and the estimated time required to have the appeal brought on for hearing, the child would at most have six months of education in French immersion rather than in the homogenous francophone school, should the appeal proceed on an expedited basis. This would not have a sufficiently significant impact upon the child’s education to bring it into the category of irreparable harm. From the evidence provided, the Court was unable to say that the balance of convenience favoured either party. Each party will be inconvenienced to some extent, depending upon the choice of school.

The Court was not persuaded that a stay of enforcement by itself was appropriate.

The Court also commented on the necessity of abridging the timelines for the application, given that the school year would start shortly.Despite dismissing the application, the Court encouraged the father to proceed with the application or with a written request for anexpedited appeal, with appropriate notice to the mother. The Court also encouraged the parties to continue to attempt to resolve the issueby agreement. The application was dismissed. Cases cited: Perron v. Perron, 2012 ONCA 811 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 Bateman v. Bateman, 2016 NLCA 41 Pumphrey v. Pumphrey (1997), (NL CA), 148 Nfld. & P.E.I.R. 340 Sypher v. Sypher (1986), (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.) Bryant v. Hayes (1997), (NL CA), 151 Nfld. & P.E.I.R. 261 Counsel: Daniel Glover, for the applicant/appellant; Susan Day, for the respondent. This application was heard and decision rendered orally on August 31, 2017 by Barry J.A.

The following Memorandum of Disposition was filed on September 5, 2017 by Barry J.A. ______________________________________________________________ Barry J.A.: [1] The parties to this application are in the process of divorce and cannot agree upon where their son Auron (DOB: November 27,2012) should go to school.

When mediation failed, the father sought a decision from Unified Family Court that Auron be enrolled in thefrancophone École des Grands-Vents, which the father submits would provide a better “fully immersive French school experience” thanthe French immersion program at Holy Trinity Elementary, the mother’s choice of school. [2] Fitzpatrick J. in a pre-trial determination ordered that Auron shall be enrolled in French immersion at Holy Trinity Elementaryfor the 2017-2018 school year. [3] The father now applies under Rule 42(2) of the Court of Appeal Rules, NLR 38/16, to stay the enforcement of the order pendingappeal.

Rule 42(2) provides: Upon application, the Court may stay the enforcement of an order under appeal pending disposition of the appeal, provided that anapplication to stay the order under appeal has not been made in the Supreme Court, Trial Division.

No application to stay has been made in the Trial Division. [4] The father bases his appeal upon what he sees as errors of fact and law arising from the failure of Fitzpatrick J. to place properweight upon a prior verbal agreement of the parties before separation to seek to have Auron enrolled at École des Grands-Vents, herfailure to properly consider the transportation difficulties created for the father if Auron attends Holy Trinity, and her failure to apply thereasoning of Perron v.

Perron, 2012 ONCA 811, which decided that attending a francophone school in an English majority environmentis different and better than French immersion in an anglophone school in terms of developing a French identity and strengtheningAuron’s bond with his father’s cultural heritage. [5] The father also stressed in his affidavit the potential impact upon Auron’s bonding with his siblings if he has to attend a schooldifferent than one ultimately chosen for them (one sibling was born on June 29, 2015 and the father’s new partner is expecting a child inOctober 2017). [6] In RJR MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, the Supreme Court sets

out the three-part test for staying a Court order pending appeal. First, ask whether there is a serious issue to be tried on appeal (one that isnot frivolous or vexatious). Second, ask whether irreparable harm will result if a stay is not granted. Third, ask how does the balance ofconvenience lie as between the parties. [7] In applying that test to custody and access cases, the best interests of the child must be considered. See R.E. v. N.G., 2010NLCA 60, 301, Nfld. & P.E.I.R. 240. This same test was applied in this Court in denying a stay of an interim relocation order inBateman v.

Bateman, 2016 NLCA 41. [8] The father notes that in Perron, at paragraphs 19-21, the Ontario Court of Appeal discussed the benefit of an education in ahomogenous French-language school such as École des Grands-Vents in fostering the development of the French language and culture. At paragraphs 20-21, Rouleau J.A. stated for the Court: Homogenous French-language education brings many advantages. It promotes full mastery of the French language and the developmentof the child’s cultural identity.

This type of instruction also allows the child to become bilingual in French and English, because ahomogenous French-language school helps the child to develop a high level of skill in both French and English: [Ontario’sAménagement Linguistique Policy for French-Language Education], at p. 42. In addition, in a social environment dominated byEnglish, a child will generally communicate in English in many aspects of daily life and, as a result, acquire knowledge of the languageof the majority: Aménagement Linguistique Policy, at p. 23.

It should also be noted that bilingualism provides a number of advantagesin terms of employment: Aménagement Linguistique Policy, at p. 42. Apart from these advantages, where children have one Francophone parent, knowledge and mastery of the language and culture of thelinguistic minority promotes and helps maintain the bonds between the children and the Francophone parent. [9] Before determining whether the father has met the test for a stay pending appeal, some comment should be made on thestandard of review to be applied when reviewing interim orders. In Bateman, at para. 13, Harrington J.A. noted Pumphrey v.

Pumphrey(1997), (NL CA), 148 Nfld. & P.E.I.R. 340 Nfld. & P.E.I.R., where on an appeal of an interim custody order, theCourt cited Sypher v. Sypher (1986), (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.), at p. 43: … an appellate court should not interfere with an interim order unless it is demonstrated that the interim order is clearly wrong andexceeds the wide ambit of reasonable solutions that are available on a

summary interim proceeding. [10] Harrington J.A. also referred to the comment of Green J.A. in Bryant v. Hayes (1997), (NL CA), 151 Nfld.& P.E.I.R. 261, at para. 11: Only where the trial judge erred in principle or overlooked or disregarded material evidence and ended up making an order whichotherwise would not have been made is an appeal court entitled to intervene. [11] With this restricted power of review in mind, I turn to the first question to be considered in deciding whether the father has metthe test for a stay of the order of Fitzpatrick J.A.

In the present case, is there a serious issue to be tried on appeal? At this point it wouldappear that the father has met this first prong of the test where he questions whether Fitzpatrick J.A. gave adequate consideration to thesignificance of the language of the child’s education for Auron’s best interests. I note the conclusion in Perron, at paragraph 32, that thelanguage of children’s education is important when considering their best interests. [12] That general proposition is not challenged by the mother in this case. She accepts that education in the French language isdesireable.

She believes, however, that in Auron’s case his best interests would be promoted by French immersion, rather thanenrollment in the homogenous program of École des Grands-Vents. It should be noted that Mr. Ring’s connection to a French ancestry ismore tenuous than Mr. Perron’s. The latter’s first language was French, while in the present case, the father’s first language is English. He relies upon his paternal grandmother’s side of the family coming from the Mi’kmaq community of Port aux Port to bolster his casefor Auron’s education in the francophone École des Grands-Vents.

Despite this distinction I am prepared to provisionally accept that thefather is not raising a frivolous or vexatious issue. I say “provisionally” because the mother has not had adequate time to prepare for thisstay application due to the abridging of the notice period. I believe I should consider the points of concern raised by the father, however,because of the imminent commencement of classes on September 6th. [13] I am not persuaded that the father has met the test of showing irreparable harm will result to him or Auron should a stay not begranted. Mr.

Ring makes the case that every day lost to Auron by losing access to French education in the École des Grands-Vents istime lost forever for which he can never be properly compensated should he win on appeal. Based upon the calendar of this Court andmy estimate of the time required to have the appeal brought on for hearing, I estimate Auron at worst may have six months of educationin French immersion rather than in the homogenous francophone school, should the appeal proceed on an expedited basis.

I have notbeen shown evidence to establish that the consequence of this would have a sufficiently significant impact upon Auron’s education tobring it into the category of irreparable harm. [14] Fitzpatrick J. did not ignore the father’s cultural reasons for his choice of schooling. She noted these are “distant on Dad’sside”. Perron makes clear that cultural considerations do not trump all other factors relating to a child’s best interests. Fitzpatrick J.found other factors in this case. She considered that Auron will be more connected to the area around Holy Trinity and will have theFrench immersion advantage.

She also considered that the mother has been the de facto primary caregiver since separation of the partiesand is living closer to Holy Trinity than École des Grands-Vents. The mother’s evidence was that she provided 90% of the transportationrequired by the children. She stated before Fitzpatrick J. that she believed it is in Auron’s best interests to attend Holy Trinity afterallowing him to attend “Kinderstart” in both places and concluding Holy Trinity was best for Auron’s needs. She said she plans to stayworking in Flatrock. She is concerned, because of a dismissive attitude by Mr.

Ring towards her that she will not get all the informationshe needs from Mr. Ring if Auron is at École des Grands-Vents. [15] From the evidence provided, I am unable to say that the balance of convenience favors either party. Each party will beinconvenienced to some extent, depending upon the choice of school.

[ 16 ] I have not been persuaded that a stay of enforcement by itself is appropriate, as suggested by Mr. Ring’s counsel. This would leave the parties in a position of uncertainty as to where Auron should commence school on September 6, 2017. If a stay were to be granted, it would have to be coupled with an order that Auron be enrolled at École des Grands-Vents rather than at Holy Trinity as ordered by Fitzpatrick J. I would then be substituting my decisions for that of Fitzpatrick J. in arriving at what would be in the best interests of Auron.

I should only intervene in this fashion if I conclude that the interim order of Fitzpatrick J. is clearly wrong. See Harrington J.A. in Bateman and Greene J.A. in Bryant . [ 17 ] Some comment upon the timeline of this application is necessary. [ 18 ] Fitzpatrick J. rendered her oral decision in favour of the mother’s choice of French immersion at Holy Trinity Elementary on July 21, 2017, after a hearing which lasted approximately two hours. [ 19 ] On August 1, 2017, Mr. Ring filed a Notice of Appeal and an application for a stay pending appeal on August 4th, before the order of Fitzpatrick J. had been signed. Mr.

Ring appears at this point to have been self-represented, although he had a solicitor at the hearing. Court Registry staff informed him that he needed to obtain and file the order of Fitzpatrick J. Several weeks of delay followed. [ 20 ] Normally this Court would not permit a matter to proceed without having the order being appealed filed. Because Auron’s school term at Holy Trinity would be commencing shortly, on August 29th, following a telephone call between Registry staff and Mr. Ring’s new counsel (who had been retained on August 25th, following Mr.

Ring’s attendance at the Legal Assistance Clinic on the 24th), I allowed the matter to be set for hearing on August 31, with abridged notice to Ms. Walsh’s counsel on the 29th. [ 21 ] Ms. Walsh’s counsel appeared on August 31st and, following my noting for the record that she probably had not received sufficient notice to prepare, confirmed that she required more time and objected to proceeding on the 31st. She did offer helpful comments at the hearing, despite being at a disadvantage. (I should note here that as far as I could ascertain, Mr.

Ring’s counsel was not responsible for any delay and presented his case in a completely professional manner.) [ 22 ] To determine whether Auron’s best interests required immediate intervention by this Court, I questioned Mr. Ring’s counsel on the material filed by him. I concluded nothing had been put before me which would warrant my granting a stay at this time. I reserved decision to allow time to prepare theses written reasons for refusing the stay. [ 23 ] In his Notice of Appeal, Mr.

Ring requested that the appeal be expedited because “the longer that Auron remains at Holy Trinity, the more prejudiced my appeal will be”. Subject to what Ms. Walsh’s counsel might submit on the question of expediting, after she has had appropriate time to prepare, I have tentatively concluded that it would be in the best interests of Auron to expedite the appeal. Accordingly, I encourage Mr. Ring to proceed with the application for an expedited appeal in the normal course (or with a written request to the registry as the new Rules allow), with appropriate notice to Ms. Walsh.

From the Court calendar it appears that the earliest time available to have a hearing of the appeal itself, should an expedited appeal be granted, would be the end of October or early November. I encourage the parties to continue to attempt to resolve the issue by agreement to minimize the time in which Auron’s ultimate schooling location may be left in a state of some uncertainty. [ 24 ] In

summary:

(1) The application for a stay of the order of Fitzpatrick J. is dismissed.

(2) Mr. Ring is encouraged to proceed without delay with an application for leave to appeal on an expedited basis or with a letter request for this if he so desires.

(3) Costs will be in the cause. Application dismissed .