2018 NLCA 73, 2018 NLCA 73

P.G. (applicant/appellant) v. C.C. (respondent) (18/104) Indexed As: P.G. v. C.C. 2018 NLCA 73 3 C.A.N.L.R. 703 Court of Appeal of Newfoundland and Labrador White J.A. December 12, 2018

Summary: Following a custody proceeding a final order was put into place which set out a parenting

schedule and required the mother to surrenderany passports in the child’s name to the father. Upon becoming aware three years later that the mother had a Colombian passport for thechild, the father commenced a contempt application against the mother, which was granted. The mother was ordered to surrender thechild’s Colombian passport and take the necessary steps to revoke the child’s Colombian citizenship. The mother appealed and appliedfor a stay pending appeal. Held: Application dismissed.

White J.A.: A stay of enforcement of an order pending appeal is governed by rule 42 of the Court of Appeal Rules, N.L.R. 38/16. Thetest for a stay is the well-established tripartite test which requires the applicant to establish that: 1) there is a serious issue to be heard onappeal; 2) irreparable harm will result if the stay is not granted; and 3) the balance of inconvenience favours granting the stay. In familyproceedings involving children, this test must be modified to take into consideration the best interests of the child. The initial step of the test for a stay involves a very low threshold.

There is a serious issue to be argued in respect of jurisdictionalconcerns, and the issue of whether a child has a right to a particular nationality. The analysis under the second branch of the test does not require conclusively determining that a party will suffer irreparable harm. Acredible reason for uncertainty surrounding the harm may be sufficient under this stage of the test. In the present case, there is significantoverlap between the latter two stages of the analysis. As such, there is no need to make a conclusion on the issue of irreparable harm inisolation.

The balance of inconvenience favours denying the stay. There is a valid basis for concern about child abduction in this case. While theappellant, even without a stay, is subject to an order to not apply for a Colombian passport, she has demonstrated non-compliance withcourt orders in the past. After being ordered to surrender any passports in the child’s name, she not only failed to do so for three years,but also failed to disclose the existence of the Colombian passport.

The judge found that the mere presence of a court order restrictingfuture international travel and future application for a Colombian passport was not sufficient to protect the child’s best interests. The application for a stay pending appeal is dismissed. Cases cited: RJR - MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 R.E. v. N.G., 2010 NLCA 60, 301 Nfld. & P.E.I.R. 240 Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65 Rees v. Royal Canadian Mounted Police, 2005 NLCA 4, 244 Nfld. & P.E.I.R. 72

Counsel: Alexandra Kindervater, for the appellant; Meagan Cottreau, for the respondent. This application was heard and decision rendered orally on December 11, 2018 by White J.A. The following reasons for decision were filed on December 12, 2018 by White J.A. ______________________________________________________________ White J.A.: [ 1 ] The child at the center of this appeal has both Colombian and Canadian citizenship. His Colombian passport is currently secured at the Supreme Court of Newfoundland and Labrador, Family Division. [ 2 ] Following a custody proceeding with numerous contested applications and a four week trial, a final parenting

schedule was put into place. This final order also required the mother to surrender any passports in the child’s name to the father. Upon becoming aware three years later that the mother had a Colombian passport for the child, the father commenced a contempt application against the mother. [ 3 ] The contempt application was granted, and the mother was ordered to surrender the child’s Colombian passport and take the necessary steps to revoke the child’s Colombian citizenship. [ 4 ] The mother has appealed the conditions included in the contempt order, and has applied for a stay pending appeal of these conditions.

Background [ 5 ] The appellant is the Colombian-born mother of the child, and the respondent is the Canadian father. Together they have an eight-year-old child who was born in Canada. [ 6 ] The appellant and the respondent were married, but separated in the fall of 2012. [ 7 ] In August of 2013, an interim order was made requiring that the child’s passport be surrendered to the Supreme Court of Newfoundland and Labrador. [ 8 ] The Court provided additional directions shortly thereafter in a separate order in August of 2013.

This order required both parties to surrender their Canadian passports to the Court, and required the appellant to report to Passport Canada that the child’s passport was missing and presumed lost, and request that the child’s passport be cancelled. The order prohibited the appellant from applying for any further passport or other travel-related document for the child for Canada or other jurisdiction without first obtaining court approval. [ 9 ] The four week trial on care and custody of the child took place in June and July of 2015. The child’s nationality was a live issue at the trial.

It was during the course of the trial that the respondent became aware that the appellant had, in the summer of 2013, successfully made arrangements with the Colombian Consulate to have the child nationalized as a Colombian citizen. [ 10 ] Following the trial, but prior to a decision being rendered, the appellant took the child to Toronto to obtain a Colombian passport for him. This was done without the respondent’s knowledge or consent. [ 11 ] The trial judge released a final decision respecting care of the child in August 2015.

It was ordered that the respondent have primary care of the child, with the appellant having access. The parties were ordered to consult on decision-making, with the respondent having the final decision failing consensus. [ 12 ] The order also directed the appellant to surrender any passport for the child to the respondent, and restricted the parties from making an application for a Colombian passport for the child.

While international travel with the child by either parent was permitted, the appellant was restricted from taking the child to Colombia for two years, with travel after that time requiring court approval. [ 13 ] In June of 2018, the respondent became aware that the child had a Colombian passport. The respondent learned this as a result of an inquiry to the Colombian Consulate. [ 14 ] Once becoming aware that the child had a Colombian passport, the respondent brought an emergency application.

In response to the emergency application, it was ordered in June of 2018 that the appellant turn over any existing Colombian passport for the child to the Supreme Court. It was further ordered that the appellant was not to travel with the child outside of Canada absent court approval. [ 15 ] In compliance with the emergency order, the appellant surrendered the child’s Colombian passport to the Supreme Court, Family Division.

[16] In July of 2018, the contempt application at issue in this appeal was filed. In November of 2018 the order under appeal wasentered. The judge found that the appellant was in contempt of court in relation to her obtaining a Colombian passport in 2015, contraryto the August 2013 order, and for failing to disclose and surrender the passport pursuant to the August 2015 final order. [17] On appeal, the appellant does not take issue with the finding of contempt. Rather, she is appealing the order of the judge inresponse to the contempt. It is this order that she is seeking to have stayed pending appeal.

Stay Pending Appeal [18] This Court is authorized to enter a stay of enforcement of an order pursuant to rule 42 of the Court of Appeal Rules, N.L.R. 38/16. [19] The test for a stay is the well-established tripartite test stated by the Supreme Court of Canada in RJR - MacDonald Inc. v.Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385.

In the context of a stay pending appeal,the applicant must establish: 1) That there is a serious issue to be heard on appeal; 2) That irreparable harm will result if the stay is not granted; and 3) That the balance of inconvenience favours granting the stay. [20] In family proceedings involving children, this test must be modified to take into consideration the best interests of the child.While this generally applies as an overarching principle to the entire analysis, it specifically modifies the framework such that theconcepts of irreparable harm and the balance of inconvenience are considered from the child’s perspective, not the perspective of theparties (R.E. v.

N.G., 2010 NLCA 60, 301 Nfld. & P.E.I.R. 240, at para. 33). Is there a serious issue to be argued? [21] The appellant asserts that the contempt judge erred by ordering that the child’s Colombian citizenship be revoked and that theappellant be prohibited from nationalizing the child as a Colombian citizen.

The appellant argues that this error raises jurisdictionalconcerns, and the issue of whether a child has a right to a particular nationality. [22] While intertwined with the factual matters that were before the contempt judge, there appear to be extricable legal principlesunderlying these issues. [23] This Court has repeatedly stated that this initial step of the test for a stay involves a very low threshold. The question is notwhether the appeal is likely to succeed.

Rather, the analysis is a limited inquiry on the potential merits of the appeal to determine if thematter is frivolous or vexatious (Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65, at para. 16). [24] In light of the record filed and the arguments advanced, I am satisfied that the appellant has established that there is a seriousissue to be argued. Whether or not the appellant will be successful in making this argument is a determination left for the panel hearingthe appeal.

Will there be irreparable harm if the stay is not granted? [25] In the context of an appeal involving a child, the consideration at this stage is whether there would be irreparable harm to thechild if the stay is not granted. The focus at this stage is on the nature of the harm that may be suffered, not the magnitude of the harm(Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65, at para. 17). [26] The analysis under this branch of the test does not require conclusively determining that a party will suffer irreparable harm.

A“credible reason for uncertainty” surrounding the harm may be sufficient under this stage of the test, with the degree of certainty being acontextual inquiry specific to the circumstances of the individual case (Rees v. Royal Canadian Mounted Police, 2005 NLCA 4, 244Nfld. & P.E.I.R. 72, at para. 60). [27] The appellant submits that the child’s Colombian citizenship is an important aspect of his identity, and that having it taken awaywould, in of itself, be sufficient to meet this stage of the analysis.

The appellant further argues that it is unclear if the child’s citizenshipcan ever be restored if it is taken away. This exacerbates the potential for harm, and raises the possibility of the appeal becomingnugatory if a stay is not granted. [28] The respondent asserts that refusing the stay would not result in irreparable harm to the child. The respondent argues that thechild’s citizenship is not a core element of his identity, and that the loss of it would not cause harm to him.

The respondent is agreeableto the child continuing to embrace his Colombian heritage while in Canada. [29] The respondent further argues that if the child surrendered his citizenship, the child could recover it again in the future. Insupport of this position, the respondent has provided email correspondence between himself and representatives of the ColombianConsulate in Canada. [30] The appellant has emphasized the uncertainty surrounding the prospect of having the child’s citizenship restored. Restoration ofcitizenship involves application of foreign laws by foreign bureaucracies.

At this time, the only evidence that citizenship can be restoredis an email by the Colombian Consulate with a one sentence response. The appellant argues that this should not be taken as conclusiveproof that citizenship can be restored. [31] While the email may not be conclusive, it is the only information available before the Court at this time. As this is the appellant’sapplication, it is the appellant’s onus to demonstrate the prospect of irreparable harm. Rather than relying on the pure unknown as therisk of harm, it would be prudent to advance some form of evidence indicating a known risk of harm.

[ 32 ] In addition to arguing that a stay is not necessary to prevent irreparable harm to the child, the respondent also argues that granting the stay would cause irreparable harm. These concerns are appropriately considered under the balance of inconvenience stage of the analysis. In the present case, there is significant overlap between the latter two stages of the analysis. As such, there is no need to make a conclusion on the issue of irreparable harm in isolation.

Does the balance of inconvenience favour granting the stay? [ 33 ] It is the respondent’s submission that the real irreparable harm to the child would arise if the stay is granted, and the child is able to maintain his Colombian citizenship. The risk associated with maintaining his Colombian citizenship is that the appellant would be able to obtain a Colombian passport for the child without the respondent’s knowledge or consent.

The respondent argues that obtaining a Colombian passport carries with it a risk of parental abduction to Colombia. [ 34 ] While the child’s Colombian passport is currently secured by the Supreme Court, the respondent submits that so long as the child has Colombian citizenship, the appellant can obtain a new passport through the Colombian Consulate by notifying them that the passport has been lost or stolen.

Short of continuously inquiring with the Consulate, there is no way for the respondent to monitor this. [ 35 ] In light of the history of this proceeding, I have concluded that the balance of inconvenience favours denying the stay. A court should take concerns of child abduction very seriously, and there is a valid basis for concern in this case. While the appellant, even without a stay, is subject to an order to not apply for a Colombian passport, she has demonstrated non-compliance with court orders in the past.

After being ordered to surrender any passports in the child’s name, she not only failed to do so for three years, but also failed to disclose the existence of the Colombian passport. [ 36 ] The contempt judge found that the mere presence of a court order restricting future international travel and future application for a Colombian passport was not sufficient to protect the child’s best interests. He found that more active steps were necessary.

There was nothing presented on this application sufficient to demonstrate that an alternate arrangement would be in the child’s best interest pending the hearing of the appeal. Conclusion [ 37 ] Both parties sought their costs in the event that they were successful on this application. As the successful party, I see no reason why the respondent should not be awarded costs of this application. [ 38 ] The application for a stay pending appeal is dismissed. The contempt order remains in force and effect. Costs are awarded to the respondent on Column 3 of the Scale of Costs in the Court of Appeal Rules .

Application dismissed .