J.R. APPLICANT/APPELLANT AND: DEPARTMENT OF FAMILY SERVICES, NUNAVUT FIRST RESPONDENT AND: MANAGER OF CHILDREN, SENIORS v. SOCIAL DEVELOPMENT,, 2023 NLCA 30

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : J.R. v. Nunavut (Family Services), 2023 NLCA 30 Date : October 18, 2023 Docket Number : 202301H0047 Restriction on Publication : There is a Publication Ban on the names and any other identifying information of the children referred to herein, as well as the names of their biological parents, relatives and foster families pursuant to

section 55 of the Children, Youth and Families Act . BETWEEN: J.R. APPLICANT/APPELLANT AND: DEPARTMENT OF FAMILY SERVICES, NUNAVUT FIRST RESPONDENT AND: MANAGER OF CHILDREN, SENIORS AND SOCIAL DEVELOPMENT, NEWFOUNDLAND AND LABRADOR SECOND RESPONDENT AND: S.V. THIRD RESPONDENT AND: J.Q. FOURTH RESPONDENT Coram: F.P. O’Brien J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Family Division 202302F0549

Application Heard: September 7, 2023 Oral Decision Rendered: September 7, 2023 Reasons for Decision Filed: October 18, 2023 Counsel for the Applicant/Appellant: Michael Collins and Melissa Saunders Counsel for the First Respondent: Gillian Bourke Counsel for the Second Respondent: Krista Atkins Counsel for the Third and Fourth Respondents: No appearance Authorities Cited: CASES CITED: RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; Manitoba (A.G.)v. Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R. 110; Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1S.C.R. 824; R.E. v.

N.G., 2010 NLCA 60, 301 Nfld. & P.E.I.R. 240; W.S. v. J.B., 2022 NLCA 52; M.G. v. S.P., 2021 NLCA 18, 6C.A.N.L.R. 493; A.H. v. R.B., 2020 NLCA 15, 5 C.A.N.L.R. 431; Lee v. Lee, 2019 NLCA 75, 5 C.A.N.L.R. 198; J.H. v. C.C., 2019NLCA 38, 4 C.A.N.L.R. 529; E.M. v. Y.C., 2018 NLCA 21, 2 C.A.N.L.R. 665; P.G. v. C.C., 2018 NLCA 73, 3 C.A.N.L.R. 703; Hynes v.Wellon, 2017 NLCA 5, 1 C.A.N.L.R. 416; Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65, 1 C.A.N.L.R. 282; Rees v.Royal Canadian Mounted Police, 2005 NLCA 4, 244 Nfld. & P.E.I.R. 72; L.M. v.

British Columbia (Director of Child, Family andCommunity Services), 2016 BCCA 109. STATUTES CONSIDERED: Children’s Law Act, RSNL 1990, c. C-13;

An Act Respecting First Nations, Inuit and Métis children,youth, and families, SC 2019, c. 24. F.P. O’Brien J.A.: Background [1] This application concerns the parenting of a seven-year-old boy who was born in Iqaluit, Nunavut, and presently lives in St.John’s, Newfoundland and Labrador. To maintain anonymity and privacy, the boy’s name will not be referenced. Rather, he will bereferred to throughout as “the child”. [2] The child was born in 2016, and he is Indigenous.

According to information provided to the Court, he was removed from hisbiological parents when he was approximately six months old and placed in the custody of the Department of Family Services,Government of Nunavut (the Department). In 2018, by an order of the Nunavut Court of Justice, the child was placed in the permanentcustody of the Director of Child and Family Services for Nunavut (the Director). [3] In January 2018, when the child was less than two years old and living in Nunavut, the Department placed him in the care ofthe applicant/appellant, J.R. (Ms. R). Ms.

R was also living in Nunavut at the time, where she was employed as a public health nurse. She became the child’s foster parent and she has continued to provide uninterrupted care for him, as his foster mother, for a period nowapproaching six years. [4] In 2019, Ms. R moved from Nunavut to live in St. John’s. The child moved with Ms. R at that time, with the approval andconsent of the Department, and the foster parent/foster child relationship continued. [5] Since moving to St. John’s approximately four years ago, Ms. R and the child have resided together in Ms. R’s home.

Socialworkers in this province, employed by the Manager of Children, Seniors and Social Development, Government of Newfoundland andLabrador (the Manager), have been involved in visiting Ms. R and the child, and monitoring the foster parent/foster child relationshipsince the move in 2019. The Court is advised that designated social workers have been assigned for this purpose. Ms. R indicates thatthere have been no concerns expressed to her by the social workers, or anyone else, regarding the care she has been providing. [6] Ms. R submits that the child has been thriving in St. John’s.

She states that he has been attending a neighborhood school forthe past two years and is beginning his third school year, that he participates in a wide range of community and extracurricular activitiesthat reflect his interests, and that he has formed significant, supportive relationships in the community. She notes that he attends an after-school program operated by an Indigenous organization in the community, and that she is committed to enhancing his awareness and

participation in his Indigenous culture and heritage. [7] Ms. R states that the child’s physical and mental health and well-being have drastically improved in recent years, incomparison to his circumstances when he first came into her care. She submits that this has resulted from the safe and nurturingenvironment that the child has come to enjoy, in which he has benefitted from the care, support and sense of security provided by Ms. Rand an extended community support group. [8] In July 2023, Ms.

R received correspondence from the Department advising that the Department was terminating the fosterparent arrangement with her, and that the child would be relocated to a new home (the relocation decision).

The correspondenceindicated that the Department “will no longer require your services as a Foster Parent for [the child]”, and that there “will be additionalinformation provided to you in the coming weeks in terms of [his] relocation to his new home”. [9] The Department subsequently advised, on or about August 29, 2023, that the relocation would occur on September 8, 2023, atwhich time the child would move to Ottawa, Ontario to live with a new foster parent and his two siblings, who are currently in carethere. [10] Ms. R submits that the proposed relocation would not be in the child’s best interests.

She contends that separating him, soabruptly, from the person who has been his primary caregiver for almost six years, and taking away “the only parent [he] has everknown”, would be regressive to his health and well-being. Her view is that the child’s best interests are served by maintaining the statusquo, not relocating him at this time, and having him continue to live in her care. Ms.

R argues that the potential harm in uprooting thechild from his home of four years, and permanently separating him from his long-term, primary caregiver and support network in St.John’s, would outweigh any potential benefit of relocation and family unification. [11] After she received notification, on or about August 29, 2023, that the child was to be relocated to Ottawa on September 8,2023, Ms. R applied to the Supreme Court of Newfoundland and Labrador, Family Division (the Supreme Court) and requested that theSupreme Court suspend the proposed relocation. [12] On September 1, 2023, Ms.

R filed an Originating Application and an Emergency Interim Application in the Supreme Court inthis matter. [13] In the Originating Application she requested, among other things, an order granting her sole custody of the child. In thealternative, she requested an order appointing her as guardian of the person of the child and, in the further alternative, she sought atemporary parenting order. She has also stated in the application that she is seeking a declaration that a provision of the Children’s LawAct, RSNL 1990, c. C-13, is unconstitutional. [14] In the Emergency Interim Application, Ms.

R requested an order preventing the child’s removal from his residence inNewfoundland and Labrador. She requested that the child remain in this province until the Originating Application respecting parentingcould be considered by the Supreme Court, and a determination could be made on the merits of the application, after a hearing. [15] A Judge of the Supreme Court considered the Emergency Interim Application. Consistent with the Court’s rules andprocedures, only written materials were considered and there were no appearances by counsel and no oral submissions or argument.

Thematter was considered on an ex parte basis, based on the application and supporting documentation filed by Ms. R. [16] The Judge considered the materials and denied Ms. R’s request for injunctive relief (i.e. her request that the Supreme Courtorder that the child not be removed from the jurisdiction before the Originating Application was considered). The Judge providedreasons for denying the request in a written endorsement, filed September 5, 2023. [17] Ms. R has appealed the Judge’s decision.

The appeal will be heard in this Court at a future date, after the parties have filed thenecessary materials required to perfect the appeal. When the appeal is heard, counsel for the parties will have an opportunity to makeoral submissions in addition to their written submissions. [18] Ms. R also filed an application requesting that this Court grant a stay or injunction, preventing the child’s removal from thejurisdiction until the appeal has been heard and decided by this Court. This is the application presently under consideration.

Issue [19] The issue in this application is whether, after considering the factors in the test for granting a stay or injunction in the contextof the present factual circumstances, it is appropriate that a stay or injunction be ordered. If so, this Court may grant a stay or injunction,and order that the child remain in this province until the appeal is decided. If not, no such order should issue. Analysis The test for a stay or injunction [20] The Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1S.C.R. 311, citing the Court’s earlier decision in Manitoba (A.G.) v.

Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R.110, identified three factors to be assessed when considering a stay or injunction application. [21] These are: (

i) a consideration of whether there is a serious issue to be tried;

(ii) a consideration of whether irreparable harm would result from refusing to grant the stay or injunction; and (iii) an assessment of the relative harm to the parties resulting from granting or denying the stay or injunction.

This factor has been described as assessing whether the balance of convenience (alternatively referred to as the balance of inconvenience) favours granting or refusing the stay or injunction. [ 22 ] The Supreme Court in RJR-MacDonald stated the test at page 334, as follows: … First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused.

Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. … [ 23 ] Further, the Supreme Court observed in Google Inc. v.

Equustek Solutions Inc. , 2017 SCC 34 , [2017] 1 S.C.R. 824 , at paragraph 1 , that, in applying the three factors set out in RJR-MacDonald , “[u]ltimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the case”. [ 24 ] Additionally, this Court has recognized that a modified approach is used when applying the RJR-MacDonald factors in a stay/injunction application in the context of parenting proceedings in a family law matter. [ 25 ] This modified approach recognizes that, in a parenting matter, the best interests of the child must be considered when applying the factors in the RJR-MacDonald test. [ 26 ] The modified approach was summarized in R.E. v.

N.G . , 2010 NLCA 60 , 301 Nfld. & P.E.I.R. 240 , at paragraph 33 , as follows: … As a result, I believe the attributes of the modified approach to stay applications in the context of custody and access cases can be summarized as follows: (

a) the test generally should be applied from the perspective of the best interests of the child ; (

b) as to the first prong, assessment of whether there is a serious issue on appeal should be undertaken bearing in mind that custody decisions are essentially fact driven and depend to a great extent on the trial judge’s overall assessment of where the best interests of the child lie; (

c) as to the second and third prongs, the questions of irreparable harm and balance of convenience must be considered from the perspective of the best interests of the child , not the parties and it is the potential for serious risk of irreparable harm to the child that is the primary consideration; (

d) circumstances of a special and persuasive nature in relation to the best interests of the child , usually connected to the risk to harm, must be demonstrated by the applicant. (Emphasis added.) [ 27 ] This Court has followed the approach set out above. See, for example, W.S. v. J.B . , 2022 NLCA 52 , at para. 3 ; M.G. v. S.P ., 2021 NLCA 18 , 6 C.A.N.L.R. 493, at para. 5 ; A.H. v. R.B. , 2020 NLCA 15 , 5 C.A.N.L.R. 431, at para. 2 ; Lee v. Lee , 2019 NLCA 75 , 5 C.A.N.L.R. 198, at para. 29 ; J.H. v. C.C . , 2019 NLCA 38 , 4 C.A.N.L.R. 529, at para. 3 ; E.M. v.

Y.C. , 2018 NLCA 21 , 2 C.A.N.L.R. 665, at para. 5 ; P.G. v. C.C . , 2018 NLCA 73 , 3 C.A.N.L.R. 703, at para. 20 ; and Hynes v. Wellon , 2017 NLCA 5 , 1 C.A.N.L.R. 416, at para. 2 . [ 28 ] Accordingly, the three factors outlined in RJR-MacDonald , namely whether there is a serious issue to be tried, the consideration of irreparable harm, and the assessment of the balance of convenience, will be considered in the factual context of the present application, recognizing that the test is applied from the perspective of the child’s best interests. Serious issue to be tried [ 29 ] Ms.

R must demonstrate that there is a serious issue to be tried on appeal. [ 30 ] The Supreme Court of Canada in RJR-MacDonald indicated that, in determining whether there is a serious issue to be tried, the reviewing court should undertake “an extremely limited review of the case on the merits”, and limit itself to only a “preliminary investigation of the merits” (at 348).

The Court observed that a “prolonged examination of the merits is generally neither necessary nor desirable” (at 338). [ 31 ] The Supreme Court in RJR-MacDonald also stated that the “threshold is a low one” in assessing whether there is a serious issue to be tried. That is, provided the assessing court is satisfied that the application “is neither vexatious nor frivolous”, the threshold is satisfied and the focus shifts to the two remaining factors, irreparable harm and balance of convenience. [ 32 ] Ms.

R submits that there are serious issues to be tried. [ 33 ] She contends that the Judge erred in failing to identify and apply the correct test, when assessing Ms. R’s application for an injunction to prevent the child from leaving the province. Specifically, Ms. R argues that the Judge placed excessive emphasis on an assessment of the merits, instead of assessing whether the application raised a serious issue.

Further, she submits that the Judge failed to assess properly the factors respecting irreparable harm and balance of convenience, as required by the test set out in RJR-MacDonald . [ 34 ] The Department argues that there is no serious issue to be tried on appeal.

[ 35 ] It notes that, while Ms. R has been the long-time foster parent of the child for almost six years, she is not his legal guardian. Rather, the child is in the permanent custody of the Director, in Nunavut, and not Ms. R. As such, the Department notes that the Director has the rights and responsibilities of a parent. The Department submits that it has made decisions regarding the child that are guided by applicable territorial and federal legislation, and that are in the child’s best interests and the public interest.

Therefore, the Department submits, there is no serious issue to be tried, and the relocation decision should not be disturbed. [ 36 ] Having considered the materials filed in this Court and the submissions of counsel, and recognizing the “low threshold” to be met to demonstrate a serious issue to be tried, and the “extremely limited review of the merits” that is indicated at this stage, I am unable to conclude that the issues raised on appeal are frivolous or vexatious. [ 37 ] First, Ms.

R submits that the Judge’s endorsement does not evince that the application was assessed on the basis of whether there was a serious issue to be tried. She submits that this standard was not identified or applied in the endorsement. Ms. R argues that the focus in the endorsement appears to have been on an assessment of the application on the merits, rather than on the prescribed “low threshold” standard as to whether the application raises a serious issue for determination. [ 38 ] Ms.

R’s allegation in this respect, that the Judge applied a standard of assessment that was too high, and therefore incorrect, would meet the requirement of raising a serious issue to be considered on appeal. [ 39 ] Second, and as noted above, the child’s best interests must be considered in applying the RJR-MacDonald factors. However, Ms. R argues that it is not apparent from the endorsement that this occurred. [ 40 ] The endorsement notes that Ms.

R is the long-time foster parent, that the Department apparently had legal custody of the child, and that the Department’s decision to relocate the child, who is Indigenous, and unite him with his siblings, was guided by applicable federal legislation. These are certainly relevant considerations, which confirm that there is legal and legislative authority supporting the decision to relocate the child. [ 41 ] However, Ms. R argues that these considerations would not necessarily be determinative of an application for injunctive relief. Ms.

R submits that they do not address her submissions that irreparable harm will result from the proposed relocation. Nor, she argues, are they determinative of the balance of convenience assessment that must be done to determine whether the child’s best interests would be served by the proposed relocation, or by maintaining the status quo until a determination is made on the merits. [ 42 ] Ms.

R’s argument in this respect, as to whether the Judge’s application of the RJR-MacDonald factors appropriately weighed the considerations of irreparable harm and balance of convenience, would also meet the low threshold requirement of raising a serious (i.e. “neither vexatious nor frivolous”) issue. [ 43 ] Accordingly, the requirement to show that there is a serious issue to be tried on appeal has been satisfied.

This determination is made based on the limited information available to the Court on this application, mindful of the directions prescribed in RJR-MacDonald regarding the low threshold to be met, and the limited review of the merits to be undertaken at this stage. [ 44 ] While Ms. R has satisfied the requirement for a serious issue to be tried on appeal, this of course is not meant to be determinative of any assessment of the appeal issues on the merits. Whether Ms.

R will succeed respecting these issues on appeal will be determined by an appeal panel, after a hearing in this Court, and based on the materials provided and submissions made at that time.

Irreparable harm [ 45 ] Regarding irreparable harm, the Supreme Court of Canada in RJR-MacDonald stated, “ the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application” (at 341). [ 46 ] Further, the Supreme Court observed that the term irreparable “ refers to the nature of the harm suffered rather than its magnitude.

It is harm which either cannot be quantified in monetary terms or which cannot be cured …” (at 341). [ 47 ] In P.G. this Court, citing Weir’s Construction Limited v. Warford Estate , 2016 NLCA 65 , 1 C.A.N.L.R. 282, observed, in “the context of an appeal involving a child, the consideration at this stage is whether there would be irreparable harm to the child if the stay is not granted” ( P.G. , at para. 25 ). [ 48 ] This Court further noted in P.G. , at paragraph 26 , citing Rees v.

Royal Canadian Mounted Police , 2005 NLCA 4 , 244 Nfld. & P.E.I.R. 72, that the “analysis under this branch of the test does not require conclusively determining that a party will suffer irreparable harm”. Rather, and as stated by this Court in P.G ., and in Lee at paragraph 17 , “ a credible reason for uncertainty may be sufficient at this stage”, and the “degree of certainty required entails a contextual inquiry specific to the circumstances of each case”. [ 49 ] Ms.

R submits that, for several reasons, the proposed relocation would cause irreparable harm to the child. [ 50 ] First, she states that the child will suffer from being removed, abruptly and permanently, from his dedicated and full-time caregiver, with whom he has lived for almost six years. Ms. R notes that while the child has progressed in her care, “a change in the status quo …poses a serious risk”. [ 51 ] She describes the evolution of the child’s physical and emotional well-being while in her care over the past six years as follows: At the time of placement, [Ms.

R] was informed that [the child] had been difficult to place due to his behaviours: he would scream with night terrors and disrupt foster families… [Ms. R] was informed that [the child] was unsuccessfully placed [many] times prior to him being placed with her. …Since the placement [Ms. R] has been dedicated in her care to [the child]; she has fed him and nurtured him during his night terrors. He was unable to speak, so [Ms. R] taught him sign language and they communicated in this manner. … [Ms.

R] and [the child] formed a deep and loving bond akin to a mother-son. The community noticed slow but steady progress once placed in [Ms. R’s] care and many community members told [Ms. R] that they have noticed [the child’s] progress… [The child] was a fragile child when Ms. R met him. He is growing and developing and flourishing in their life in St. John’s. They have built a strong community, including with the local First Nations community, largely through an [Indigenous] centre where the child attends events and daily afterschool programming. [ 52 ] Second, Ms.

R states that the relocation will disrupt the child’s ongoing medical care, which she submits is essential to his health and well-being. Ms. R notes that “the child has been receiving care and therapy in relation to various medical and behavioral issues, including those related to his time before coming into [her] care”. Further, she states that “the child’s history includes trauma, which he has been recovering from with [Ms. R’s] assistance since 2018”. [ 53 ] More specifically, Ms. R submits that relocation would negatively impact the child’s access to a special health care program that has been arranged in St.

John’s. She notes that their family physician “was of the view that the program would support [the child’s] progress”. Ms. R described this program as follows: Before learning of the proposed relocation of [the child], [Ms. R] and the [child’s] family physician had arranged for the child to participate in the CAYAC clinic in the fall of 2023. CAYAC is an alternate care clinic run from the Janeway Children’s Hospital that provides therapeutic, multidisciplinary care for children with needs, including in respect of speech development.

Through that program, the child would have access to, among other providers, a speech language pathologist, developmental pediatrician, education specialist, music therapist, as needed. [ 54 ] Third, Ms. R asserts that if relocation occurs before the appeal is decided, the appeal proceedings in this Court, as well as the proceedings related to the Originating Application in the Supreme Court, “will be frustrated if not rendered completely moot”. Ms.

R argues that irreparable harm to the child may result because a judicial determination as to whether the relocation is in the child’s best interest would not occur until after the relocation has taken place. Ms. R submits that it is critical to assess the relocation decision, in terms of the child’s best interests and potential harm, before removing the child from his present home. [ 55 ] The Department argues that no irreparable harm would result from refusing to grant the injunction, and allowing the relocation to proceed at this time.

It submits that the decision to relocate the child was made by professionals within the Department, and was arrived at after fully considering the child’s best interests. [ 56 ] The Department submits that the Judge correctly decided this issue. The Department contends that the Judge did so by “reasoning that the child is in the legal custody of the Nunavut Director, a plan had been made to reunite [the child] with his siblings”, and that this decision was made in accordance with territorial and federal legislation, including “

section 16 of An Act Respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c. 24 ”. [ 57 ] As noted above, any assessment of irreparable harm in this context must be done in terms of the best interests of the child. In the present circumstances, the Court must undertake this assessment based on the limited written information provided to the Court, and the submissions of counsel. [ 58 ] In light of concerns about serious harm that have been identified by Ms.

R, and set out in the materials filed with the Court, as potentially flowing from the child’s proposed relocation at this time, I would conclude that the irreparable harm requirement of the RJR- MacDonald test has been met.

Balance of convenience [ 59 ] In considering the balance of convenience, the Supreme Court in RJR-MacDonald stated, “ an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits” (at 334). [ 60 ] In assessing the balance of convenience in the present context, the best interests of the child must be considered. [ 61 ] Ms. R submits that having the child remain in the province until the appeal is decided poses no risk of harm to the child. She argues that the child’s life in St.

John’s, as it has been established for the past four years, would continue, uninterrupted, until the appeal is determined. Doing so, Ms. R argues, would be beneficial to the child, as it would maintain the security arising from continued care, in a familiar environment, with a trusted caregiver. Ms. R argues that the child could continue to attend school, receive medical care and interact with the greater community without disruption, until the appeal is determined. [ 62 ] The Department argues that it is acting in the best interests of the child by relocating him to Ottawa to live with his siblings.

It submits that the relocation decision is consistent with the Department’s statutory responsibilities pursuant to the applicable legislation in Nunavut, as well as federal legislation, and that the relocation should therefore not be delayed or otherwise frustrated.

It is submitted that, to do otherwise would interfere with the Department’s responsibility to carry out its legislative mandate. [ 63 ] The Department submitted that, “to the best of the Nunavut Director’s knowledge, there is no case law in Canada where a foster parent, or former foster parent, was granted an injunction that interfered with a child welfare agency’s ability to carry out its legislative mandates”.

However, as noted in submissions provided at the oral hearing of the application in this Court, there is authority for an appellate court granting an injunction to prevent a child protection agency from relocating a child in its custody to another province. See for example L.M. v. British Columbia (Director of Child, Family and Community Services) , 2016 BCCA 109 . [ 64 ] The Department has expressed its genuine concern about the ability to carry out its legislative mandate. However, this concern is not determinative of the issue of harm, which must be considered in a balance of convenience analysis.

The Court must assess the relative harm associated with allowing or dismissing the application for injunctive relief, again from the perspective of the child’s best interests. While the Department has expressed concern about the possible harm arising from interference with its legislative mandate and responsibilities, the Department’s concern would not supplant or foreclose a judicial determination of what is in the best interests of the child.

[ 65 ] Ms. R acknowledges that if the appeal is unsuccessful, the child’s relocation will occur subsequent to the appeal. What is being requested at this stage is that relocation not take place until this Court hears the appeal. Ms. R argues that maintaining the status quo until the appeal is decided would not create any serious harm to the child. She submits that, should it ultimately be determined that it is in the child’s best interest for him to live with his siblings in Ottawa, the delay in effecting the relocation would not cause serious harm to the child. Ms.

R indicates that she fully supports the child developing meaningful relationships with his siblings, and his Indigenous culture, but is concerned that the child’s best interests must be the paramount consideration in considering the proposed move. [ 66 ] Ms. R, in the notice of appeal filed in this Court, requests that this Court “set aside the order of [the Judge] and maintain the status quo pending a hearing on the merits in the [Supreme Court]”. She argues that the balance of convenience favours granting the application. Ms.

R submits that if the child moves to Ottawa at this time, and this Court later determines on appeal that the child should remain in this province until the parenting issues are considered by the Supreme Court, this could lead to an unnecessary, future disruption and further uncertainty in the child’s life. [ 67 ] Having considered the parties’ written submissions and materials filed, and having considered the parties’ oral submissions at the application hearing respecting the balance of convenience factor, I would conclude that the balance of convenience favours granting the application and having the child remain in this province until the appeal is decided.

Summary and Disposition [ 68 ] In

summary, having considered the three factors outlined in the RJR-MacDonald test within the factual context of the present application, and recognizing that the test is to be applied from the perspective of the child’s best interests, I conclude that the test has been met. [ 69 ] Additionally, and further to the Supreme Court of Canada’s observations in Google Inc ., at paragraph 1 , I conclude that granting an order preventing the relocation of the child until the appeal in this matter has been determined “is just and equitable in the circumstances” . [ 70 ] Accordingly, at the conclusion of the oral hearing on this application, I allowed Ms.

R’s application and ordered that the child is to remain in this province, in the care of Ms. R, until the appeal has been heard and decided by this Court. [ 71 ] Additionally, at the application hearing, I ordered that the appeal of this matter be expedited, and would expect counsel for the parties to provide their written materials on the appeal in an expeditious manner so that the earliest possible date can be set for the oral hearing of the appeal. The Court is available to give further directions in this respect should the parties so require. _____________________________ F.P. O’Brien J.A.