Beairsto v. Cook, 2018 NSCA 50

Nova Scotia Court of Appeal Citation: Beairsto v. Cook , 2018 NSCA 50 Date: 20180619 Docket: CA 476904 Registry: Halifax Between: Macayla R. Beairsto Appellant v. Jeremy B. Cook Respondent Judge: Beveridge, J.A. Motion Heard: June 7, 2018, in Halifax, Nova Scotia Written Decision: June 19, 2018 Held: Motion granted with conditions Counsel: Patrick Eagan, for the appellant Jeremy Cook, self-represented INTRODUCTION [ 1 ] The respondent successfully brought an application pursuant to the Hague Convention.

The Honourable Justice Jeffrey Hunt delivered thorough and thoughtful oral reasons on February 1, 2018 (as yet unreported). [ 2 ] The application judge issued an order on May 16, 2018 addressing a number of issues. The only one that is important for my purposes is his direction that the appellant return their now 18-month-old daughter, Sahara, to the State of Washington on or before June 9, 2018 and to do certain things to facilitate that. [ 3 ] The appellant filed a Notice of Appeal in this Court on June 1, 2018.

Concurrently, or soon thereafter, motions were filed for date and directions, abridgement of time, and for a stay of the May 16, 2018 order pending determination of the appeal. [ 4 ] Mr. Cook, who is self-represented, responded with his own motions: to enforce the May 16, 2018 order; to hold the appellant in contempt; and to have the appealed dismissed as being out of time and meritless. [ 5 ] Affidavits were filed by the parties, one of which included copies of the exhibits before the application judge.

The application judge released his oral reasons, reduced to writing, on June 6, 2018 (also unreported). [ 6 ] The respondent’s affidavit of June 4, 2018 indicated an awareness and desire to have the motions heard via telephone conference on Wednesday, June 6, 2018. However, he chose not to pursue that request and came to Nova Scotia to appear in person on Thursday, June 7, 2018. [ 7 ] The respondent did not seek an adjournment to obtain counsel, or otherwise.

He wanted the motions to proceed. [ 8 ] At the conclusion of the hearing, I dismissed the respondent’s motions, confirmed directions to perfect the appeal for an expedited hearing, and granted a stay of execution pending appeal with reasons to follow. These are my reasons. THE RESPONDENT’S MOTIONS [ 9 ] It is easy to understand the respondent’s frustrations. The appellant could have proceeded with an appeal within 25 days (as calculated in CPR 94) from the date of the application judge’s reasons, delivered on February 1, 2018. She did not. I have no explanation why an order was not issued forthwith.

[10] There is some reference in the materials and submissions to an accommodation by the respondent to permit Sahara to remain inNova Scotia for a significant family birthday. June 9, 2018 was the agreed upon date for Sahara’s return. The order of May 16, 2018encapsulates the decision of the application judge directing Sahara’s return on or before that date and ancillary relief. [11] In Nova Scotia, a party may appeal as of right by filing and serving a Notice of Appeal within 25 days from a final order ordecision. Civil Procedure Rule 90.13 provides as follows: 90.13

(1) An appeal under legislation that provides a deadline for starting the appeal must be started no later than the time providedin the legislation and the calculation of the days shall be according to Rule 90.13(2).

(2) For the purposes of

section 49 of the Judicature Act, Rules 94.02(1) to (4) apply to the calculation of a period of daysprovided in a provincial statute for starting an appeal, or applying for permission to appeal, and the period is not calculated as providedin the

Interpretation Act or in any other statute.

(3) An appeal, or application for leave to appeal, from one of the following kinds of orders, or from the decision uponwhich it is based, must be started no more than the number of days in the following table after the date of the order, unlesslegislation provides, or a judge of the Court of Appeal permits, otherwise… [Emphasis added] [12] The table that follows in Rule 90.13(3) provides for 25 days as calculated by CPR 94. Excluded is the day of the event, all daysthe Court offices are closed, and the day on which a thing is required to be done.

Hence, the Notice of Appeal was filed and served wellwithin the required time limits. [13] As to the other motions by the respondent, a single judge of the Court does not have the power to dismiss an appeal on thebasis that it lacks merit. There is no basis to conclude that the appellant is in contempt of any court order; nor is there is a need for afurther order to be issued to require the appellant’s compliance with the order of May 16, 2018. Absent a stay of that order, it is in fullforce and effect. [14] It is to the appellant’s motion for a stay I can now turn.

APPELLANT’S MOTION FOR A STAY [15] First, I will set out the relevant principles and then apply them to the circumstances of this case. [16] In Nova Scotia, as in most common law jurisdictions, an appeal does not stay the execution or enforcement of a judgment. Thisis because a successful litigant should not lightly be deprived of the fruits of what has been ordered.

Rule 90.41 of the Nova Scotia CivilProcedure Rules provides: 90.41(1) The filing of a notice of appeal shall not operate as a stay of execution or enforcement of the judgment appealed from. [17] On the other hand, there may be circumstances where, to ensure that the statutory right to challenge the correctness of a lowercourt’s decision is not rendered illusory, the court hearing an appeal must grant a stay or some other order. This is recognized in Rule90.41(2): 90.41

(2) A judge of the Court of Appeal on application of a party to an appeal may, pending disposition of the appeal, order stayed theexecution and enforcement of any judgment appealed from or grant such other relief against such a judgment or order, on such terms asmay be just. [18] The test to govern the exercise of this discretion was settled by Hallett J.A. in Purdy v. Fulton Insurance Agencies Ltd. (1990), (NS CA), 100 N.S.R. (2d) 341 (NSCA).

It has two parts. [19] For the primary test, an applicant will be successful if the Court is satisfied on a balance of probabilities: there is an arguableissue raised by the appeal; irreparable harm to the appellant should the stay not be granted (assuming the appeal is ultimately successful);and, the appellant will suffer greater harm if the stay is not granted than the respondent if the stay is granted. [20] The appellant may also obtain relief pending an appeal, even if it cannot meet all of the criteria for the primary test, if there areexceptional circumstances that nonetheless make it fit and just to grant a stay.

This is known as the secondary test. The appellant didnot place any reliance on the secondary test. [21] Is the test the same where it involves an appeal from an application under the Hague Convention? [22] Courts have long recognized the need to keep foremost the best interests of children when adjudicating custody and access.

Forthis reason, the primacy of the children’s best interests mandate a more stringent test of “circumstances of a special and persuasivenature” to justify a stay of execution or enforcement of a decision that has determined issues of custody and access based on the bestinterests of the children (see Purdy v. Fulton, supra at para. 13; Reeves v. Reeves, 2010 NSCA 6; Slawter v. Bellefontaine, 2011 NSCA90). [23] However, despite the obvious impact on children from a Hague application, the usual Purdy v. Fulton criteria govern a motionfor a stay pending appeal. [24] In C.L.M. v.

J.E.A., 2002 NSCA 95, Justice Flinn was asked to stay an order for the return of a child to Iowa following a Hagueapplication. After canvassing the obligations and processes mandated by the Hague Convention, he concluded that the usual test for astay pending appeal applied since the application judge was not called on to make a determination of best interests:

[22] The different test, enunciated above for cases involving custody of children, does not apply in the present application before me.The ultimate issue in the matter before Justice Goodfellow was not a determination of what was in the best interests of the child, K.— afact driven determination.

Rather, it was to determine if the child, K., had been wrongfully removed from her habitual residence; and, ifso, whether any of the exceptions to the application of the Hague Convention were applicable in this case. [23] In my view, the test set out in Fulton is the appropriate one to determine the issue before me. [25] Justice Flinn was reinforced by three recent decisions by judges of the Ontario Court of Appeal which had adopted the sametest for a stay of a Hague application order: [26] I have made reference to the test used in the Ontario Court of Appeal because there are three recent decisions from judges of thatcourt, in chambers, granting stays of execution of judgments issued under the Hague Convention, pending the hearing and disposition ofappeals from those judgments (see: Pollastro v.

Pollastro, [1998] O.J. No. 4753 (Charron, J.A.); A.F.J.C. v. G.M., [1999] O.J. No. 2657(Weiler, J.A.); and Maharaj v. Maharaj, (ON CA), [2001] O.J.

No. 1875 (McMurtry, C.J.O.)). [27] In each of these three Ontario cases, the Ontario Appeal Court chambers judge issued a stay of execution of a judgment issuedunder the Hague Convention, pending the hearing and disposition of an appeal from that judgment, because: 1. the appeal raised a serious issue; and 2. if the stay were not granted the appeal would be nugatory, and in this sense the appellant would suffer irreparable harm; and 3. the judge decided that the appeal could be heard expeditiously, keeping any further delay at a minimum, and as a result thebalance of convenience favoured the appellant. [28] I see no difference, in substance, between the test used in Ontario and the test set out in Fulton simply because of the use of thephrase “serious issue” which is referred to in Ontario, and the phrase “arguable issue,” which is referred to in the Fulton test. [26] This analysis and test was adopted by the Newfoundland Court of Appeal in V.B.M. v.

D.L.J., 2004 NLCA 49. I will apply thesame principles. ANALYSIS Arguable Issue [27] What constitutes an arguable issue was addressed by Freeman J.A. in Coughlan et al. v. Westminer Canada Ltd. et al. (1993), (NS CA), 125 N.S.R. (2d) 171 (NSCA) at para. 11: “An arguable issue” would be raised by any ground of appeal which, if successfully demonstrated by the appellant, could result in theappeal being allowed. That is, it must be relevant to the outcome of the appeal; and not be based on an erroneous principle of law.

Itmust be a ground available to the applicant; if a right to appeal is limited to a question of law alone, there could be no arguable issuebased merely on alleged errors of fact. An arguable issue must be reasonably specific as to the errors it alleges on the part of the trialjudge; a general allegation of error may not suffice.

But if a notice of appeal contains realistic grounds which, if established, appear ofsufficient substance to be capable of convincing a panel of the court to allow the appeal, the Chambers judge hearing the applicationshould not speculate as to the outcome nor look further into the merits. Neither evidence nor arguments relevant to the outcome of theappeal should be considered.

Once the grounds of appeal are shown to contain an arguable issue, the working assumption of theChambers judge is that the outcome of the appeal is in doubt: either side could be successful. [28] The appellant’s Notice of Appeal sets out four grounds of appeal as to how the application judge erred in law. They werebased on appellate counsel’s understanding (Mr. Eagan was not counsel on the application) of the application judge’s decision.

Thegrounds focus on the application judge’s determination of habitual residence and whether the exceptions set out in the HagueConvention applied. [29] Events have overtaken the relevance of some of those grounds: counsel now has the judge’s written reasons; and, the decisionof the Supreme Court of Canada in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, released on April 20, 2018. [30] The majority reasons by McLachlin C.J. in Balev change the legal test for determination of a child’s habitual residence. Thatdetermination is fundamental to a Hague application.

Subject to enumerated exceptions, signatory states are required to return the childto their country of habitual residence before they were wrongfully removed or retained. [31] The Convention does not define “habitual residence”. It is left to the Courts to give meaning to this concept.

McLachlin C.J.considered the three proposed approaches to determine habitual residence: the intention of the parents who have the right to determineresidence (parental intention); a child-centered approach which looks to the child’s acclimatization or connections to the states inquestion; and, a hybrid approach which focuses on all relevant considerations. [32] The child-centered approach had only been endorsed in Quebec, and even then, just briefly. The parental intention model wascommon in Canada and elsewhere.

Citing harmonization with the Convention and the international trend to adopt the hybrid approach,the parental intention approach was rejected in favour of the hybrid approach (para. 57). [33] McLachlin C.J. elaborated as to the nuances of the hybrid approach: [42] Finally, the hybrid approach holds that instead of focusing primarily or exclusively on either parental intention or the child’sacclimatization, the judge determining habitual residence under

Article 3 must look to all relevant considerations arising from the facts ofthe case at hand. As noted above, in Canada, the hybrid approach has been adopted in Quebec: see Droit de la famille — 17622, at paras.

29-30. [43] On the hybrid approach to habitual residence, the application judge determines the focal point of the child’s life — “the family andsocial environment in which its life has developed” — immediately prior to the removal or retention: Pérez-Vera, at p. 428; see alsoJackson v. Graczyk (2006), (ON SC), 45 R.F.L. (6th) 43 (Ont. S.C.J.), at para. 33.

The judge considers all relevantlinks and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A tocountry B; and the child’s links to and circumstances in country B. [44] Considerations include “the duration, regularity, conditions and reasons for the [child’s] stay in the territory of [a] Member State”and the child’s nationality: Mercredi v. Chaffe, C-497/10, [2010] E.C.R. I-14358, at para. 56.

No single factor dominates the analysis;rather, the application judge should consider the entirety of the circumstances: see Droit de la famille — 17622, at para. 30. Relevantconsiderations may vary according to the age of the child concerned; where the child is an infant, “the environment of a young child isessentially a family environment, determined by the reference person(

s) with whom the child lives, by whom the child is in fact lookedafter and taken care of”: O.L. v. P.Q.

(2017) C-111/17, (C.J.E.U.), at paras. 43-45. [45] The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children:see Mercredi, at paras. 55-56; A. v. A. (Children: Habitual Residence), [2013] UKSC 60, [2014] A.C. 1, at para. 54; L.K., at paras. 20and 26-27. However, recent cases caution against over-reliance on parental intention.

The Court of Justice of the European Union statedin O.L. that parental intention “can also be taken into account, where that intention is manifested by certain tangible steps such as thepurchase or lease of a residence”: para. 46. It “cannot as a general rule by itself be crucial to the determination of the habitual residenceof a child ... but constitutes an ‘indicator’ capable of complementing a body of other consistent evidence”: para. 47.

The role of parentalintention in the determination of habitual residence “depends on the circumstances specific to each individual case”: para. 48. [46] It follows that there is no “rule” that the actions of one parent cannot unilaterally change the habitual residence of a child. Imposingsuch a legal construct onto the determination of habitual residence detracts from the task of the finder of fact, namely to evaluate all ofthe relevant circumstances in determining where the child was habitually resident at the date of wrongful retention or removal: see In reR.

Children, [2015] UKSC 35, [2016] A.C. 76, at para. 17; see also A. v. A., at paras. 39-40. [47] The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: Redmond v.Redmond, 724 F.3d 729 (7th Cir. 2013), at p. 746. It requires the application judge to look to the entirety of the child’s situation. Whilecourts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevantfactors is not closed.

The temptation “to overlay the factual concept of habitual residence with legal constructs” must be resisted: A. v. A.,at paras. 37-39. [34] The appellant points to numerous passages in the application judge’s reasons where he referred to the intentions of theappellant and respondent as to where Sahara would be living.

During the course of the hearing, the respondent reasonably conceded thatthe appellant raises, or will be able to raise, an arguable issue. [35] The appellant is still within the window of opportunity to amend her grounds of appeal as of right and announced an intentionto do so in light of Office of the Children’s Lawyer v. Balev. I granted leave for her to file an amended Notice of Appeal before July 10,2018. Irreparable Harm [36] The respondent also reasonably conceded during the hearing that should a stay not be granted, the appellant’s right of appealwould be rendered nugatory.

As such, she would suffer irreparable harm should a stay not be granted. Balance of convenience [37] Prior to hearing the motion for a stay, I gave directions that would require the appellant to perfect her appeal on compressedtimelines with the hearing on the first available date in September 2018. [38] Nonetheless, the respondent argued that he has been prejudiced by the delay in the return of Sahara and will continue to sufferharm if the stay were granted.

In addition to delay, he also identified difficulties in exercising access with his daughter, exacerbating hisfear of parental alienation. [39] I was satisfied that the balance of convenience favoured the granting of the stay of execution of the May 16, 2018 order, but onconditions. [40] CPR 90.41(2) provides that a judge has the discretion to grant a stay on terms that he or she considers just.

To minimize delayand harm to the respondent I granted the stay conditional on: the appellant cooperating fully with the respondent for him to havereasonable access visitation with the child in person in Nova Scotia and electronically; and the appeal proceeding without appellant-caused delay on September 19, 2018. [41] Costs were not sought. None are ordered. Beveridge, J.A.