Godin v. Godin, 2011 NSCA 19

NOVA SCOTIA COURT OF APPEAL Citation: Godin v. Godin , 2011 NSCA 19 Date: 20110211 Docket: CA 340365 Registry: Halifax Between: Cindy Mae Godin Appellant v. Marc Kenneth Godin Respondent Judge: The Honourable Justice David P.S. Farrar Motion Heard: February 10, 2011, in Halifax, Nova Scotia, in Chambers Held: Motion for stay dismissed. Counsel: David A. Grant, for the appellant LouAnn Chia sson, for the respondent Decision : [ 1 ] The appellant, Cindy Mae Godin, moved for a stay of the Order of the Honourable Justice Mona J.

Lynch dated November 1st, 2010, (the Order) which ordered that the respondent, Marc Godin, would continue to have primary care of the couples three children. [ 2 ] The stay motion was heard on February 10, 2011. At the conclusion of argument I dismissed the appellant’s motion. I advised the parties that I would file written reasons for my decision, what follows are those reasons. Background [ 3 ] On October 17, 2007, following the separation of the parties, an interim custody hearing was held and the respondent was granted primary care of the children.

The appellant was granted interim reasonable access including every Tuesday evening, every second weekend and other access as agreed.

[ 4 ] An independent parental capacity assessment was ordered in March, 2008, and received in early February, 2009. The assessment, conducted by the IWK Parent and Child Assessment Team, recommended; 1. the children remain in the primary care of their father; 2. the children have access with their mother no more than twice per week and there be no overnight access; and 3. the access between the children and the mother be supervised. [ 5 ] In June, 2009, the oldest child (born December, 1993) left his father’s home and went to live with his mother. Mr.

Godin immediately made another interim custody application as a result of the child having left the home. A five day trial was scheduled for November, 2009, but did not occur at that time due to the illness of counsel. It was eventually heard over six days in June and September, 2010. [ 6 ] On October 8, 2010, the trial judge rendered her decision and on November 1st, 2010, an Order was issued by the court, granting, as previously noted, primary custody of the three children to the respondent.

Following the issuance of the Order, the second oldest child (born September 1995) took up residence with his mother. [ 7 ] The respondent made an application for contempt against Ms. Godin and on December 6th, 2010, Justice Lynch found her in contempt of the Order. She has been given until February 21st, 2011, to purge the contempt. The appellant appealed the contempt decision (CA No. 342242) and, concurrent with this motion, she sought a stay of the contempt finding.

Because the decision had not yet been transcribed nor has the order been taken out, the motion for a stay of the contempt finding was adjourned without day. [ 8 ] The appellant did not file a motion to stay the Order until February 2, 2011, almost two months after she had been found in contempt of it. The Legal Test on a Stay Motion [ 9 ] The parties agree that, where custody and access are an issue, the legal test for a stay of execution is distilled from considerations of irreparable harm and the balance of convenience to focus on the best interests of the children. Justice Fichaud in Reeves v.

Reeves , 2010 NSCA 6 , succinctly summarized the principles as follows: [21] ... The stay applicant must have an arguable issue for her appeal. But, when a child's custody, access or welfare is at issue, the consideration of irreparable harm and balance of convenience distils into an analysis of whether the stay's issuance or denial would better serve, or cause less harm to, the child's interest. ... [ 10 ] In Minister of Community Services v. B.F. , 2003 NSCA 125 , Cromwell, J.A. (as he then was) at ¶ 20 sets out the applicant’s burden on a stay motion involving the custody of children: [20] ...

The applicants must show a risk of harm produced by the combination of the continuing in force of the order under appeal and the delay until the result of the proposed appeal is known. This risk is that if the stay is withheld, their rights and the interests of the children will be so impaired by the time of final judgment that it will be too late to afford complete relief. On the other hand, this risk must be balanced with the risk of harm to the children if the stay is granted.

The risk to be considered is that of harm to the children that could result from staying an order that may be affirmed on further review to be both lawful and in their best interests: ... Application of the Test

[ 11 ] Ms. Godin must show a risk of harm produced by the combination of the continuing in force of the Order under appeal and the delay until the result of the proposed appeal is known. The risk being that if the stay is withheld, the rights and interests of the children will be so impaired by the time of final judgment that it would be impossible to afford complete relief. On the other side of the scale, this risk must be balanced with the risk of harm to the children if the stay is granted. [ 12 ] I see no basis for granting a stay in this case.

Even if I assume that the appellant can raise an arguable issue, she cannot establish that the children will endure harm should the stay not be granted. [ 13 ] The appellant’s argument for irreparable harm is found in the statement in Ms. Godin’s affidavit that it would be in the best interest of the children to continue to live with her until the appeal is determined. She says that a move, at this time, would be disruptive to their education, and career prospects. [ 14 ] No evidence is submitted in support of those assertions. Mr.

Godin, in his affidavit, filed in opposition to the motion, makes the valid observation that the oldest child resided with him until June of 2009 and was able to attend school, church, air cadets and the Sylvan Learning Centre from his house without any difficulty. The second oldest child, who left after the Order was issued, had no issue with respect to his ability to attend school or activities at the time of trial or prior to his leaving his father’s house. [ 15 ] The appellant has not satisfied me that there is a risk of harm to the children if the Order is not stayed.

To the contrary, a review of the decision of Justice Lynch, and her findings, shows a real risk of harm to the children should the Order not be obeyed. In the trial judge’s decision (reported 2010 NSSC 365 ) she conducted an in-depth examination of the best interests of the children in order to determine the issues of custody and access. Justice Lynch was concerned with the appellant’s mental health, inappropriate boundaries with respect to the children, her ability to be a good role model for the children and the fact that she had misled her children about having cancer. At ¶ 66 she states: [66] ... .

Other concerns about the mother included her demonstrated poor boundaries with the children; her inability to prioritize the children's needs above her own; the fact that she lied to the children and family about having cancer and receiving treatment for that cancer; the fact that she maintained the facade of the cancer for several months; the fact that she posed the children for pictures to show that the father had them in inappropriate clothing – one such photo showed her youngest daughter's partially exposed buttocks.

Concern was raised that the mother is more invested in the conflict with the father than in the needs of the children. [ 16 ] The court considered the independent assessment conducted by the IWK Parent and Child Assessment Team (referred to earlier in ¶ 4) which recommended that the children remain in the primary care of the respondent and that the children have limited, supervised access with the appellant (¶ 63-70). [ 17 ] Of particular significance is the finding by the trial judge that, although the children would likely want to live with the appellant, this would not be in their best interests.

At ¶ 84 of the decision Justice Lynch concludes: [84] It would not be in the best interests of the children to live primarily with the mother. The children's emotional health would be jeopardized. [ 18 ] An appellate judge considering a stay motion in custody matters shows considerable deference to the trial judge’s findings. The determination of the child’s best interests is a delicate fact-driven balance at the core of the rationale for appellate deference ( Nova Scotia (Minister of Community Services) v. D.M.F. , 2004 NSCA 113 (¶ 15 )).

[ 19 ] Ms. Godin, on this motion, asks this Court to grant a stay which would, in effect, put in place what Justice Lynch found would not be in the best interests of the children, that is, to live primarily with her. The trial judge’s findings should be given deference. She had the opportunity of seeing the parties and investigating the children’s circumstances over six days of trial. Her decision is well- written and references in detail the evidence upon which she relies in support of her conclusions. She found, and I agree, it is not in the best interests of the children to be in the primary care of Ms.

Godin. [ 20 ] For these reasons, it is in the children’s best interests that the stay be denied. I dismiss the stay motion with no order as to costs. [ 21 ] The Order of Justice Lynch stands, and must be obeyed until it is reversed on appeal or until an order has been secured to the effect that it need not be obeyed. The appellant has until February 21st, 2011 to purge the contempt. I strongly urge her to do so. [ 22 ] Finally, the respondent asked that I issue an order preventing the appellant from proceeding with her appeal until she purges her contempt.

I declined to do so as no motion was before me seeking the appeal be stayed pending the purging of the contempt. Farrar, J.A.