C.B. v. N.S., 2014 NLCA 51

Date: 201412 15 Docket: 14/89 Citation: C.B. v. N.S. , 2014 NLCA 51 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : C. B. APPELLANT/APPLICANT AND : N. S. RESPONDENT Coram: Green C.J.N.L., Welsh and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200702U0996 (2014 NLTD(F) 11) Appeal Heard: December 15, 2014 Judgment Rendered: December 15, 2014 (Orally) Written Reasons Filed: December 19, 2014 Reasons for Oral Decision by Welsh J.A. Concurred in by Green C.J.N.L. and White J.A. Counsel for the Appellant/Applicant: Self Represented (Teleconference) Counsel for the Respondent: Self Represented

REASONS FOR ORAL DECISION Welsh J.A.: [ 1 ] Ms. B., the former wife of Mr. S. and the mother of three children from that marriage, has appealed orders of Dunn J., dated May 5, 2014, dealing with child support, spousal support, division of property and occupation rent. Ms. B. applied for a stay of those orders pending disposition of the appeal. At the hearing, the application for a stay was dismissed. Following are the reasons for that decision. BACKGROUND [ 2 ] Mr. S., who resides in Newfoundland and Labrador, has sole custody of the three children of his marriage with Ms. B.

The children, now ages seven and eight, have regular telephone and web-cam access with their mother who currently resides in Calgary, Alberta. Ms. B. is remarried and has a two-year-old child from that marriage. [ 3 ] Ms. B. was granted “generous access to the children whenever she is in the province of Newfoundland and Labrador” (order of McGrath J., dated August 22, 2013, updating an order of 2010, at paragraph 4). In addition, McGrath J. ordered: [20] As Mr. S. had the children for Christmas 2012, Ms. B. shall have access to the children for Christmas 2013 and every second year thereafter.

She shall have access each Easter. Both Christmas access and Easter access shall be for a period of fourteen (14) days, which shall be booked around and include the days the children are off school. Ms. B. shall have access to the children for a period of no more than six (6) weeks each summer and this access shall occur during the time the children are on school break. [21] In recognition of there being no child support paid during access, Mr. S. shall book and pay the costs of travel for both the alternating Christmas access and each Easter access. … Mr.

S. shall accompany the children or arrange for another responsible adult known to the children to accompany the children to and from the alternating Christmas and each Easter access visit. [22] … [Regarding summer access,] Ms. B. shall accompany the children or arrange for another responsible adult known to the children to accompany them. Ms. B. shall book and pay for the cost of this summer travel for both the children and the accompanying adult. [ 4 ] Regarding support payments, McGrath J. ordered: [33] The Interim Spousal Support Order of Mr. Justice Seaborn of July 30, 2009 [requiring Mr.

S. to pay $800 per month to Ms.

B.], remains in full force and effect until future Order of this Court. … [36] The Interim Child Support Order for [the children] shall cease with effect from June 1, 2010. [ 5 ] The final paragraph in McGrath J.’s order relates to the anticipated decision by Dunn J.: [39] As Madam Justice Dunn has reserved her final decision on financial issues including the division of property, child support, spousal support and access costs (travel costs), a copy of this Order shall be forwarded to her so that she will be aware of this Order for the costs of travel so that any financial adjustment necessary can be made in her Final Decision and Order.

If any provisions of this Order regarding costs of access require modification as a result of any Final Decision or Order of Justice Dunn, the parties have leave to make application to this Court. [ 6 ] Commencing August 1, 2009, Mr. S. was ordered to pay interim spousal support of $800 per month to Ms. B. By order dated May 5, 2014, Dunn J. ordered that, because Ms. B. had become financially independent, there would be no order for future spousal support. Regarding the period prior to May 2014, Dunn J. ordered “retroactive cessation of interim spousal support effective from March 1, 2011”, and, further, that Ms.

B. must repay the sum paid by Mr. S. for spousal support from that date (paragraph 3). [ 7 ] Regarding child support, based on Mr. S. having sole custody as of June 1, 2010 and unclear financial information from Ms. B., Dunn J. ordered Ms. B. to pay $550 per month to Mr. S., commencing June 1, 2014. She ordered retroactive child support totaling $23,650 with the proviso: 3. The amount of child support may be recalculated upon Ms.

B. providing proof of income for the calendar years 2012 and forward in satisfactory form to the Director of Support Enforcement … . [Underlining in original.] [ 8 ] Regarding access travel costs, Dunn J. ordered: 6. [Ms. B.] shall reimburse [Mr. S.] for all access costs borne by [Mr. S.] subsequent to the summer access of 2011, and [Ms. B.] shall thereafter be responsible for all costs of access by her to the children. [ 9 ] Ms. B. has appealed the decisions of both McGrath and Dunn JJ., but has sought a stay only with respect to the decision of Dunn J. At the hearing of the stay application, Ms.

B. submitted that she is unemployed, has a young child to care for at home, and cannot afford to pay the ordered child support or the children’s Easter access travel costs.

ANALYSIS The Law [ 10 ] Rule 57.10(1) of the Rules of the Supreme Court, 1986 provides that “filing of a notice of appeal shall not operate as a stay of the order appealed from”. However, pursuant to subsection (2), where a party applies, the Court may stay the order appealed from pending disposition of the appeal. [ 11 ] The test to be applied in determining whether a stay should be granted where custody of and access to a child are at issue is discussed in N.G. v. R.E. , 2010 NLCA 60 , 301 Nfld. & P.E.I.R. 240. The test for a stay generally has three prongs:

(1) Is there a serious issue to be tried 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 N.G. , paramountcy of the best interests of the child is engaged, with the result that the test will be applied from that perspective. I note in this case that the stay relates not to custody and access directly, but to the costs involved which may impact the ability of the parent to exercise access. However, the same approach applies. Application of the Law [ 12 ] It is accepted that the appeal is not frivolous. Accordingly, the first prong of the test is satisfied.

The focus of the analysis is on the questions of irreparable harm and the balance of convenience. [ 13 ] The next scheduled access visit for the children with Ms. B. is Easter which occurs in early April 2015. Under Dunn J.’s order, Ms. B. would have to pay the travel costs. If that order is stayed, the earlier order requiring Mr. S. to pay those costs would be reinstated. Ms. B. submitted that it would be harmful to the children to miss this visit.

She also submitted that it would be expensive and inconvenient for her to have the visit in this Province because she would have to bring her young child and her husband while leaving her husband’s two children in Calgary. Ms. B. stressed the need for all the children to have contact with each other. [ 14 ] These submissions must be considered in light of the following. While there have been some scheduling issues, Ms. B. has regular telephone and web-cam contact with the children. She chooses not to come alone, entailing less expense, to visit the children in this Province.

This is the only access visit until next Christmas which Mr. S. would be required to fund if Dunn J.’s order was stayed. Depending on the circumstances, it is possible that a decision on the appeal will be made in time to deal with the issue of Easter access costs. Further, if Ms. B.’s appeal is successful, and the Easter visit is missed, it could be made up at a future time.

From the children’s perspective, while it is desirable that they have the Easter visit, there is no basis on which to conclude that they will suffer irreparable harm if it does not occur. [ 15 ] An additional consideration is the possible concern that, should the children travel to Alberta, they would not be returned to Newfoundland and Labrador as required. In August 2014, when the children’s summer visiting time had expired and they were expected at the airport, Ms. B. indicated to Mr. S. that she would not be returning the children. Ms.

B. said she had reason for keeping the children as she had reported possible abuse to social services. As it turned out, Mr. S., having obtained an ex parte order for return of the children, was required to fly out to Calgary to bring the children home. [ 16 ] Mr. S. also raised the concern that, if Dunn J.’s orders were stayed, he would be required to continue to pay the $800 per month spousal support previously ordered. In addition to having to make this monthly payment, Dunn J.’s order requiring Ms. B. to pay child support to Mr. S. would be stayed, negatively affecting the funds available to Mr.

S. to care for the children as their sole custodian. [ 17 ] Considering the above, Ms. B. failed to demonstrate persuasive reasons, particularly in relation to the best interests of the children relative to the risk of harm, a primary consideration, that would support the imposition of a stay of Dunn J.’s orders. Further, applying the principle of paramountcy of the best interests of the children in circumstances such as this, Ms. B. failed to establish that the balance of convenience favours imposition of a stay. [ 18 ] Accordingly, the application was dismissed.

There was no order as to costs of the application. ____________________________________ B. G. Welsh J.A. I Concur: _________________________________ J. D. Green C.J.N.L.

I Concur: _________________________________ C.W. White J.A.