2017 NLCA 5, 2017 NLCA 5

Michelle Hynes (applicant/appellant) v. Kerwin Wellon (respondent) (16/90) Indexed As: Hynes v. Wellon 2017 NLCA 5 1 C.A.N.L.R. 416 Court of Appeal of Newfoundland and Labrador Hoegg J.A. January 27, 2017

Summary: The Appellant applied to stay an Interim Order of the Supreme Court of Newfoundland and Labrador, Family Division requiring her to return the child of the parties to the St. John’s area prior to the start of school in January. Held: Application allowed. Hoegg J.A.: The tripartite test for staying a Court Order pending appeal involves asking whether there is a serious issue to be tried on appeal (meaning one that is not frivolous or vexatious), whether irreparable harm will result if a stay is not granted, and consideration of the balance of convenience as between the parties.

This Court, has modified application of that test in custody and access cases to include the best interests of the child or children involved when considering irreparable harm and the balance of convenience. There is a serious issue to be tried on appeal. This Court has found that in making interim relocation orders, the status quo should not be disturbed absent compelling circumstances. Given the significant change to the status quo required by enforcement of the interim order in this case, whether compelling circumstances exist is arguable. A move to the St.

John’s area at this time would result in irreparable damage to the appellant and the children, and would not be in the best interests of the children. I am also of the view that the balance of convenience favors the appellant, given the respondent’s current circumstances, since there are child protection concerns respecting the relationship between the child and the respondent. Cases cited: RJR McDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 31 R.E. v. N.G. , 2010 NLCA 60 Bateman v. Bateman , 2016 NLCA 41 Bateman v.

Bateman, 2016 NLCA 55 Counsel: Melanie Del Rizzo, for the applicant/appellant; Appearing on his own behalf, the respondent. This application was heard on January 24, 2017 before Hoegg J.A.

The following Memorandum of Disposition was filed on January 27, 2017 by Hoegg J.A. ______________________________________________________________ Hoegg J.A.: [ 1 ] The Appellant, Michelle Hynes, applies to stay an Interim Order of the Supreme Court of Newfoundland and Labrador Family Division dated August 17, 2016 requiring her to return the child of the parties, K. H-W., to the St. John’s area prior to the start of school in January, 2017. Ms. Hynes lives in Labrador City, Labrador with K.

H-W. and an older daughter. [ 2 ] The usual tripartite test for staying a Court Order pending appeal, set out in RJR McDonald Inc. v. Canada (Attorney General) , [1994] 1 SCR 31 , involves whether there is a serious issue to be tried on appeal (meaning one that is not frivolous or vexatious), whether irreparable harm will result if a stay is not granted, and consideration of the balance of convenience as between the parties. In R.E. [1] v.

N.G. , 2010 NLCA 60 , this Court, like appellate courts in other Canadian jurisdictions, modified application of that test in custody and access cases to include the best interests of the child or children involved when considering irreparable harm and the balance of convenience. The same test was recently applied by this Court in denying a stay of an interim relocation order pending appeal in Bateman v. Bateman , 2016 NLCA 41 . [ 3 ] Ms. Hynes argues that, in the circumstances of this case, the Judge erred in ordering that K. H-W. be returned to the St.

John’s area in the middle of the school year and by unilaterally rewriting one of the terms of a previous Consent Order which was incorporated into the Interim Order. In the appeal decision Bateman v. Bateman 2016 NLCA 55 , this Court found that in making interim relocation orders, the status quo should not be disturbed absent compelling circumstances which existed in that case. Given the significant change to the status quo required by enforcement of the interim order in this case, whether compelling circumstances exist is an arguable issue.

Accordingly, the grounds of appeal in this case cannot be said to be frivolous or vexatious, so there is a serious issue to be tried. [ 4 ] Ms. Hynes argues that she, her older child, and K. H-W. will suffer irreparable harm if a stay is not granted, and that a move to the St. John’s area at this time is not in the best interests of K. H-W. and her older sister. The evidence before me is that such a move would require Ms. Hynes to leave her gainful and permanent employment in Labrador and relocate to St. John’s with no income and no place for the family to live in the middle of the school year. Ms.

Hynes’ efforts to obtain employment in the St. John’s area have been futile, and living arrangements previously available to her and her children with her mother or her aunt are no longer available. Her mother now lives in Renews and her aunt has moved to a 50-plus condo. Ms. Hynes maintains that a move to St.

John’s under these circumstances would cause irreparable harm to her, and by extention to the children, and would also cause the children to be uprooted from their stable living situation where both children are thriving and the older child is accessing supports for a special needs condition, and placed into a very uncertain situation with no supports. [ 5 ] Mr. Wellon represented himself at this hearing. He has always been an access parent to K. H-W. At present he enjoys telephone and skype access to K. H-W as travel to Labrador for face to face access is prohibitively expensive. His position is that Ms.

Hynes has employment opportunities on the island of Newfoundland (he cited Bonavista as an example) and that she should comply with the interim order. [ 6 ] The evidence is that there are child protection concerns respecting the relationship between K. H-W. and Mr. Wellon. Mr. Wellon is exercising supervised access in a public location to his younger child of a different relationship. He is scheduled to complete a John Howard Society Program as part of CYFS protective intervention commencing in 2017, and CYFS has advised Ms.

Hynes that a safety plan will be put in place with restrictions and/or supervision respecting Mr. Wellon’s access to K. H-W making it unlikely that he would be able to enjoy unsupervised or increased access to K. H-W. at this time. [ 7 ] In my view, a move to the St. John’s area at this time would result in irreparable damage to Ms. Hynes and the children, and would not be in the best interests of K. H-W., as well as those of her older sister (to the extent that her interests are a valid consideration in this matter). I am also of the view that the balance of convenience favors Ms. Hynes, given Mr.

Wellon’s current circumstances. The inconvenience to Ms. Hynes and the children is far greater than the inconvenience to Mr. Wellon. [ 8 ] I was given to understand that there have been delays in approving funding or providing legal representation for Ms. Hynes, and that

Ms. Hynes’ counsel on this application is on a limited retainer from Legal Aid. I would urge all involved with this issue to move quickly to trial so that the parties and their children will be able to enjoy certainty and stability as soon as possible. [ 9 ] I make no order as to costs. Application allowed.