W.S. APPLICANT/APPELLANT AND: J.B. RESPONDENT, 2022 NLCA 52

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : W.S. v. J.B. , 2022 NLCA 52 Date : September 6, 2022 Docket Number : 202201H0048 BETWEEN: W.S. APPLICANT/APPELLANT AND: J.B. RESPONDENT Coram: Welsh J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Family Division 201802F0960 Application Heard: September 6, 2022 Judgment Rendered Orally: September 6, 2022 Memorandum of Disposition Filed: September 7, 2022 Counsel for the Applicant/Appellant: Johnathan E. Earle and Sandra Fry Counsel for the Respondent: Lisa L. Baker Authorities Cited:

CASES CITED: J.H. v. C.C. , 2019 NLCA 38 . MEMORANDUM OF DISPOSITION Welsh J.A. : [ 1 ] This is an application for a stay of enforcement of an interim order regarding which school the parties’ child will attend for a Kinderstart program in January 2023, together with which daycare she will attend at that time. The Kinderstart program does not involve full-time attendance at school, but merely provides a preliminary introduction to and preparation for young children who are eligible to be enrolled for kindergarten the following September.

The parties are in agreement that their child should attend a French immersion program, which is available at either of the schools proffered by the parties and considered by the applications judge. [ 2 ] At the hearing, I dismissed the application for a stay, with costs. Following are my reasons. [ 3 ] The test to be applied in assessing an application for a stay of enforcement of an order 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. [ 4 ] Regarding the strength of the appeal, the threshold is low. The issues raised by the father appear to be procedural and factual in nature.

For example, he submitted that an interim application, without the opportunity to cross-examine on the affidavits, is an inappropriate procedure to use when determining an important issue such as where the child will attend school. The father also relies on “several factual discrepancies in the facts that were not minor”, such as the relevant school catchment areas and the commencement date of the mother’s employment. In the circumstances, in deciding the application, it was unnecessary to comment on the strength of these grounds.

The application for a stay was best decided based on the second and third prongs of the test. [ 5 ] Regarding the second prong of the test, I was satisfied that neither the child nor either parent would suffer irreparable harm if the Court declines to order a stay of enforcement of the interim order. The Kinderstart program is merely an introduction to school for a child eligible for kindergarten in September. For this child, that is another full year away. There is ample time for the father to proceed with this appeal even before the child is to begin the Kinderstart program.

Further, counsel for the mother advised the Court that the issues between the parties are at an initial stage of proceedings in the Supreme Court, Family Division, where the assistance of case management and settlement conferences may preclude the necessity for and appropriateness of an appeal of this interim order. [ 6 ] Further, as pointed out by the mother, from time to time children do change schools, daycares, routines and so on. It cannot be assumed that such changes will result in irreparable harm.

In this case, the child has not yet even begun the Kinderstart program. [ 7 ] Regarding the third prong of the test, the balance of convenience, based on their current places of residence, one of the parents will have to drive to drop off and pick up the child to and from school and daycare.

The applications judge relied on the affidavit evidence in concluding that the balance would weigh in favour of the mother based on her work schedule, compared to that of the father. [ 8 ] In the result, I concluded that the test setting out the parameters for a stay of enforcement of the interim order regarding the child’s schooling was not satisfied. Accordingly, I dismissed the application. I ordered that the mother is entitled to costs of the application under Column 3 of the Scale of Costs in the Court of Appeal Rules , NLR 38/16 . _____________________________ Welsh J.A.