Leis v. Leis, 2011 MBCA 109

Citation: Leis v. Leis, 2011 MBCA 109 Date: 20111221 Docket: AF 11-30-07615 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) J. G. E. Young andCHERYL EVONNE LEIS ) K. S. Brownell ) for the Applicant (Petitioner) Respondent ) ) T. P.

Beley- and - ) for the Respondent ) ) Chambers motion heard:DAVID WILLIAM LEIS ) December 15, 2011 ) (Respondent) Applicant ) Decision pronounced: ) December 21, 2011 CHARTIER J.A. 1 On July 22, 2011, the trial judge granted, amongst other relief, primary care and control of the children of themarriage to the mother and allowed them to move with her to Seattle, Washington, as soon as arrangements could be made. On August2, 2011, the applicant (the father) appealed that decision and moved for a stay pending appeal.

On September 1, 2011, Steel J.A. stayedthe custody provisions of the order, which included the move to Seattle, until a decision from this court on the appeal. That decisionissued on December 2, 2011, when the father’s appeal was dismissed. 2 The father now moves for a stay pending the determination of an application for leave to appeal to the Supreme Courtof Canada. Pursuant to s. 65.1 of the Supreme Court Act and s. 26(5) of The Court of Appeal Act, C.C.S.M., c.

C240, a judge of this courthas jurisdiction to consider the stay request. 3 The factors to be considered on stay requests are well known and were set out in RJR -- MacDonald Inc. v. Canada(Attorney General), (SCC), [1994] 1 S.C.R. 311, as follows: 1. is there a serious question to be argued on appeal, 2. would the applicant suffer irreparable harm if the stay is refused, and 3. on a balance of convenience, who would suffer greater harm from the granting or refusal of the stay. 4 These are the usual factors.

However, when the request is for a stay pending the determination of an application forleave to appeal to the Supreme Court of Canada, the applicant is seeking a second appeal. As a result, the “serious question” elementmust be considered in the light of two additional factors. First, for the second level of appeal, the Supreme Court has strict leaverequirements (see s. 40(1) of the Supreme Court Act). To meet the “serious question” criterion, the question will generally need to be ofpublic or national importance or raise an issue of legal importance. See also BTR Global Opportunity Trading Ltd. v.

RBC DexiaInvestor Services Trust, 2011 ONCA 620 (QL), where Laskin J.A., in chambers, when considering a similar stay request, explained (atpara. 18): Ordinarily, the threshold for showing a serious issue to be adjudicated is low. However, the criteria for granting leave to appeal to theSupreme Court of Canada add another layer to this component of the test. Under s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, the Supreme Court of Canada typically grants leave to appeal only in cases of public or national importance. Thus, a provincial

appellate court judge hearing a motion for stay pending leave to appeal to the Supreme Court of Canada must take account of thestringent leave requirements in the Supreme Court Act: see Merck & Co. v. Nu-Pharm Inc. (2000), (FCA), 5 C.P.R.(4th) 417 (F.C.A.) and Ontario Public Service Employees Union v. Ontario (A.G.) (2002), (ON CA), 158 O.A.C.113. Therefore, as leave has yet to be granted, the Supreme Court’s stringent leave requirements are a factor to be considered on the “seriousquestion” component. See also Turf Masters Landscaping Ltd. v. T.A.G.

Developments Ltd. and Dartmouth (City) (1995), (NS CA), 144 N.S.R. (2d) 326 (C.A.), and Nova Scotia (Minister of Community Services) v. B.F. and B.W., 2003 NSCA 125 atpara. 11, 219 N.S.R. (2d) 67. 5 The second additional element to be considered on the “serious question” factor is that the decision of first instancehas already been reviewed and upheld by an appellate court. This necessarily means that the questions raised by an applicant requiredappellate deference and/or were not considered to be sufficiently serious to constitute reversible error by the appeal court.

As a result,there will generally need to be a compelling reason to cause a single judge of the appeal court to take a different view of the question. 6 Thus, the threshold on the “serious question” factor is much higher on applications for stay pending leave to theSupreme Court of Canada than those for stay pending appeal to provincial appellate courts. Moreover, while the three factors set out inthe RJR -- MacDonald test are interconnected, a request for a stay will typically be denied when a party fails to establish the “seriousquestion” component of the test (see Hart v.

DuBois, 2011 MBCA 75 at para. 6, 268 Man.R. (2d) 303). 7 One additional and final point on the usual RJR -- MacDonald test. As this is a child custody and mobility case, thesecond and third factors of that test must also be adapted to take into account the best interests of the children (see Child and FamilyServices of Western Manitoba v. K.B. et al., 2006 MBCA 48 at para. 27, 205 Man.R. (2d) 31, and B.F. and B.W. at para.13). 8 In the instant case, I have not been convinced that the father has met the first element of the stay test.

The trial judgemade findings of fact and assessed credibility, as a result of which he concluded that the best interests of the children lay in moving withthe mother to Seattle. These findings called for deference. On appeal, this court concluded that appellate intervention was unwarranted. The father has failed to persuade me that the Supreme Court would not accord the same level of deference. 9 Moreover, while there can be no doubt of the significance of this matter for the parties involved, I have not beenconvinced that it raises matters of public or national importance.

The law on mobility applications was settled by the Supreme Court ofCanada in the leading case of Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27, and the father has not succeeded insuitably explaining which principles of this area of this law should be revisited by the Supreme Court. 10 With respect to the irreparable harm factor, the father submits that the denial of the stay application “would have thepractical effect of depriving [his] right to have the matter proceed to the Supreme Court of Canada.” I fail to see how the children leavingCanada, in compliance with the trial judge’s order, would negatively impact on the father’s leave application.

The United States ofAmerica is a signatory to the Hague Convention and any order made in Canada is enforceable in Seattle. The father has not pointed to aninstance where the mother has not returned with the children as and when she said she would. 11 Finally, as to the balance of convenience, the father argues that it would be best to maintain the status quo and that “hewill suffer more harm if the stay is not granted than the [mother] will if the stay is not granted.” The reality is that the status quo is nolonger available.

The evidence is that the mother had to sell her house out of financial necessity and her temporary livingaccommodations in Winnipeg will no longer be available as of the end of this month. She and her new husband have purchased aresidence in Seattle and steps have been taken to enroll the children in school in that city. More importantly, and in light of the above,the father has failed to establish that a stay would be in the best interests of the children. In my view, the balance of convenience doesnot favour the stay. 12 In the end, the father has not met his onus.

He has not satisfactorily shown that he has raised a serious question to beargued on appeal, that he would suffer irreparable harm if the stay is refused, and that the balance of convenience favours a stay. 13 For these reasons, the motion for a stay is denied with costs. J.A.