J.L. v T.T., 2023 SKCA 43

Court of Appeal for Saskatchewan Docket: CACV4165 Citation: J.L. v T.T. , 2023 SKCA 43 Date: 2023-03-29 Between: J.L. Applicant/Appellant (Petitioner) And T.T. Respondent/Respondent (Respondent) Before: Richards C.J.S. (in Chambers) Disposition: Application granted Written reasons by: The Honourable Chief Justice Richards On application from: FLD-SA-00208-2019 (Sask KB), Saskatoon Application heard: March 22, 2023 Counsel: J.L. appearing on his own behalf T.T. appearing on her own behalf Richards C.J.S. I. INTRODUCTION [ 1 ] J.L. and T.T. are the parents of a three-year-old child.

On February 8, 2023, following a trial, a King’s Bench judge made an order providing that T.T. would have primary parenting responsibility for the child but that J.L. would have extended parenting time on specified weekends and holidays. J.L. has filed a notice of appeal and now applies pursuant to the newly amended Rule 15 of The Court of Appeal Rules to stay the trial decision pending the determination of his appeal. [ 2 ] As explained below, I conclude that the trial decision should be stayed and a modified parenting regime put in its place pending the outcome of this appeal.

At the same time, every effort must be made to bring this matter on for hearing and resolution as soon as reasonably possible. II. BACKGROUND [ 3 ] The large part of the factual background on which these proceedings rest is set out in the trial decision. Its key aspects can be summarized as follows: (

a) J.L. and T.T. met in 2018 in Saskatoon. J.L. worked in that city. T.T. was a stay-at-home mother of two young boys. (

b) T.T. became pregnant in late 2018. She and J.L. ended their relationship in April of 2019. (

c) J.L.’s parents live in Regina. After the baby was born, his mother came to Saskatoon to help. She stayed at J.L.’s home and was there for four months with the child moving between T.T.’s residence and J.L.’s residence. That said, T.T. acquiesced to the child spending most of her time with J.L. and his mother. (

d) In June of 2019, J.L. brought an application for sole interim custody. At that point, the child was spending the majority of her time with him and being cared for by his mother. Justice Klatt ordered joint interim custody and equal parenting time on a five-day rotation. (

e) J.L. did not like the interim order and withdrew from parenting totally for over two months. (

f) Shared parenting resumed from about October to December of 2019. At the end of December, J.L. advised that he was moving to Regina for employment and for the support of his parents. T.T. did not have a vehicle. J.L. told her that he would be responsible for driving the child between Saskatoon and Regina. (

g) Following the move to Regina, the relationship between J.L. and T.T. deteriorated further. There were a number of occasions, six in total, when T.T. was obliged to get a court order to have the child returned to her. Three of those orders involved a provision for police assistance. As well, J.L. refused to drive the child to Saskatoon. As a result, T.T. struggled to pick the child up on scheduled exchange dates because, as noted, she, i.e., T.T., does not have a vehicle. [ 4 ] I also note that T.T. has been unemployed since the child’s birth. J.L. was working in auto sales.

He says that he is now out of the workforce because of a permanent disability involving problems with his vision. He says that he presently parents full time. III. THE TRIAL DECISION [ 5 ] The trial judge wrote a 42-page decision wherein she set out the evidence in detail and then worked through each of the

relevant provisions of The Children’s Law Act, 2020, SS 2020, c 2. In the end, and most centrally, she decided that J.L. and T.T. shouldhave shared decision-making responsibility on all matters concerning the child with the exception that, if an agreement could not bereached on issues concerning healthcare, T.T. would have the final say. The trial judge also ordered that, effective March 1, 2023, T.T.would have primary parenting responsibility for the child, with the child’s residence being in Saskatoon.

At the same time, J.L. wasgranted what the trial judge called “extremely generous parenting time…significantly more than would typically be awarded to a parentwho is not in a shared parenting arrangement or is not the parent with whom the child primarily resides” (at para 77(3)). This included twoout of every three weekends and various holidays, school breaks and so forth. She also ordered that J.L. pay child support in the amount of$713.00 per month. [6] J.L. indicated during oral argument, and T.T. confirmed, that the child has remained with J.L. since the trial decision wasreleased.

J.L. says that he had heard nothing from T.T. between December of 2022 and the weekend of March 18, 2023. The child hasapparently been with him throughout. IV.

ANALYSIS [7] J.L. seeks an order staying the trial decision pending the outcome of his appeal and substituting for it an order under whichthe child would live primarily with him, and T.T. would parent the child each week from Wednesday at 3:30 p.m. to Sunday at 11:00 a.m.Before turning to the particulars of the considerations relevant to that application, it is necessary to consider the general approach thatshould be taken in determining whether a stay should be granted. A.

The proper approach under Rule 15 [8] Rule 15 of The Court of Appeal Rules used to provide that, with some exceptions, the filing of a notice of appeal operated tostay the execution of the judgment or order under appeal. A significant body of case law grew up around that provision. [9] Those cases established the approach to be taken by a Chambers judge when deciding whether to lift a stay. Gerski v Gerski,2006 SKCA 66, 285 Sask R 121 [Gerski], is representative of the relevant case law. It says this: [11] The principles to be applied in adjudicating an application to lift a stay are well settled.

The underlying objective is to preventinjustice and to ensure that the result is as fair and equitable as possible for all sides. As stated by Lane J.A. in Ochapowace First Nationv. Araya and Shepherd (1994), (SK CA), 123 Sask. R. 311 (C.A.) at para. 11, “[t]he purpose [of lifting a stay] is tominimize prejudice pending the appeal and to balance the competing interests of the respondent who has been successful against those ofan appellant who ought not to be prejudiced simply by appealing”. [10] Rule 15 was stood on its head on January 1, 2023.

As of that date, the rule was amended to provide, with limited exceptions,that the execution of a judgment or order is not stayed by the filing of a notice of appeal. This change was made for two main reasons.First, to reflect the basic notion that the decisions of trial courts should be presumed to be correct, not incorrect.

Second, to address aconcern that, at least in some situations, appellants were using the automatic stay as no more than a tool to bring additional negotiatingpressure on respondents or to avoid the impact of the trial-level decision for as long as possible regardless of the merit of their appeals. [11] Rule 15 now reads as follows: 15(1) Unless ordered pursuant to Subrule (3) or otherwise provided by law, the service and filing of a notice of appeal or an applicationfor leave to appeal does not: (

a) stay the execution of the judgment appealed from; (

b) stay proceedings in the action; or (

c) invalidate any intermediate act or proceeding taken pursuant to the judgment.

(2) An application to stay the execution of all or part of a judgment or to stay proceedings pending an appeal may be made to: (

a) the judge appealed from; or (

b) a judge of the court.

(3) The judge mentioned in paragraph (2)(

a) or (

b) who hears an application pursuant to that subrule or who imposes a stay on the judge’sown initiative may give any directions and orders that the judge considers appropriate in the circumstances.

(4) Unless otherwise ordered, an order staying proceedings does not stay the signing and entry of the judgment appealed from or theassessment of costs under that judgment.

(5) Unless otherwise ordered, a judgment creditor may provide the sheriff with a certified copy of an order staying enforcement measuresunder a money judgment and thereafter may register that judgment pursuant to The Enforcement of Money Judgments Act and sections 171and 173 of The Land Titles Act, 2000, but the judgment creditor shall not provide the sheriff with enforcement instructions until the stayhas expired or been lifted.

(6) Notwithstanding Subrules (1) to (5), former Rule 15 and former Forms 5a and 5b, as they existed on October 2, 2022, continue toapply to any appeal that: (

a) is commenced by the filing of a notice of appeal on or before December 31, 2022; and

(

b) is continued after December 31, 2022. [12] This is the first time that a judge of the Court has had an occasion to consider an application for a stay under the amended Rule.An issue arises, therefore, as to how a judge faced with an application of this sort should go about deciding whether it should be granted. [13] In answering this question, I start with the proposition that, as the Supreme Court has indicated, “the same principles should beapplied by a court whether the remedy sought is an injunction or a stay”.

See: RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311 at 334 [RJR-MacDonald]. As Beetz J. explained in Manitoba (Attorney General) v MetropolitanStores (MTS) Ltd., (SCC), [1987] 1 SCR 110 at 127 [Metropolitan Stores]: A stay of proceedings and an interlocutory injunction are remedies of the same nature.

In the absence of a different test prescribed bystatute, they have sufficient characteristics in common to be governed by the same rules and the courts have rightly tended to apply to thegranting of interlocutory stay the principles which they follow with respect to interlocutory injunctions. [Citations omitted] [14] This is the analysis that the Court has applied historically when it has been asked to stay a decision pending an appeal to eitherthis Court or to the Supreme Court.

See, for example: H.S. v C.S., 2006 SKCA 93, 285 Sask R 280; Rothmans, Benson Hedges Inc. vSaskatchewan, 2003 SKCA 104; Dearborn v The Director of the Financial and Consumer Affairs Authority, 2015 SKCA 99. [15] That approach serves to draw the matters normally considered when determining whether to grant an interlocutory injunctioninto the analysis of whether to grant a stay. They are: (

a) the strength of the applicant’s case; (

b) whether irreparable harm, i.e., harm thatcannot be compensated in damages will be caused if the injunction is not granted; and (

c) the balance of convenience as between theparties. See: Metropolitan Stores; RJR-MacDonald. The proper approach to the assessment of these matters was explained in MosaicPotash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc., 2011 SKCA 120, 341 DLR (4th) 407 [Mosaic], andsummarized at paragraph 113 thereof. [16] The

summary in Mosaic does not translate perfectly into the context of an application to stay a lower court decision pending theresolution of an appeal. However, as modified to fit the Rule 15 context, it suggests that a decision about whether to grant a stay should bemade by proceeding as follows: (

a) The first step will normally be an assessment of the strength of the appeal. The general rule should be that, unless theappellant has raised a serious question as to the validity of the judgment under appeal, a stay is not appropriate. In other words, an appealthat is frivolous or vexatious cannot ground a stay. If the case is determined to involve a serious ground of appeal, the judge should turn toa consideration of irreparable harm and balance of convenience. (

b) Irreparable harm is best seen as an aspect of the balance of convenience. The usual approach here is that the appellant mustestablish at least a meaningful doubt as to whether the loss they might suffer if the judgment is enforced during the time it takes for theappeal to be heard and decided will be something that is adequately compensable in damages that they would be able to recover. Putanother way, the appellant must demonstrate a meaningful risk of irreparable harm. If this is done, the analysis turns to the balance ofconvenience proper. (

c) The assessment of the balance of convenience will usually be the core of the analysis. In this regard, the relative strength ofthe appellant’s case, the relative likelihood of irreparable harm, and the likely amount and nature of such harm will typically all berelevant considerations. Depending on the particulars of the case, strength in relation to one of these matters might compensate forweakness in another.

Centrally, the judge must weigh the risk of the irreparable harm the appellant is likely to suffer before the appeal isdecided if the stay is not granted, and they ultimately succeed on appeal, against the risk of the irreparable harm the respondent is likely tosuffer if the stay is granted and they prevail on appeal. Nonetheless, the balance of convenience analysis is compendious.

It canaccommodate a range of equitable and other considerations. [17] All of this said, as was the case under the previous version of Rule 15 where the question was whether to lift a stay, the judge’sultimate focus in considering whether to grant a stay must be on the overall equities and justice of the situation at hand.

The foregoingframework of analysis is simply that – a framework – it is not a rigid and inflexible template. [18] I also note that there may be some limited circumstances where the line of approach just set out will not be directly applicableor where the subject matter of the case demands a special approach to the assessment of the equities of the situation. The most obviousexample of this is when the appeal concerns the parenting of a child. In such cases, the overriding consideration will necessarily be thebest interests of the child.

This was the approach that the Court took when deciding whether to lift a stay under the previous version ofRule 15. See, for example: Wiegers v Gray, 2007 SKCA 30. It is appropriate in the context of the amended Rule as well. [19] Further, it should be remembered that the question of whether to grant a stay is not an all or nothing proposition. The decisionunder appeal may be stayed either in whole or in part and, as well, it is open to a chambers judge to fashion an order involving new termsor provisions if the overall equities of the situation so require.

See Turtle v Valvoline Canadian Franchising Corp., 2021 SKCA 46 atparas 53-55; B. The situation in this case [20] Turning to the particulars of this case, I begin by observing that J.L. has raised at least some serious grounds of appeal. Withoutdelving into the specifics of his various submissions, he argues that, among other things, the trial judge: (

a) based her decision on facts notin evidence and misapprehended evidence; (

b) imposed a parenting arrangement that is unworkable because it requires him to spendextended time in Saskatoon, away from his home; (

c) failed to consider evidence concerning the nature and strength of the child’srelationship with each parent; and (

d) failed to consider that the child has lived primarily with him for over three years. [21] As noted above, the overriding consideration in a stay application involving the parenting of a child is the best interests of thechild.

[ 22 ] The significant point here is that the child has been living in Regina with J.L. since January of 2020. Albeit apparently because of the difficulties she faces in arranging for transportation to and from Regina, T.T. appears to have had relatively limited contact with the child during this time. J.L. advised during his oral submissions that the child has never had more than two weeks of parenting time with T.T. in the last three years. T.T. did not take issue with this version of events. [ 23 ] I note as well that the child is said to have some special needs.

She is not yet toilet trained and is non-verbal. She is enrolled in preschool on Mondays and Wednesdays in Regina – something J.L. indicates was not easy to arrange given her lack of toilet training. The child also sees a speech therapist on Tuesdays in Regina and has done so, says J.L., since 2021. [ 24 ] I pressed J.L. as to whether he would be able to drive the child to and from Saskatoon so as to facilitate T.T.’s parenting time. He replied in the negative, saying that his eyesight issues are an impediment to safe driving and that he would not want to be on the highway with the child.

He also said that the trip to and from Saskatoon has become more than what his parents can fairly handle. [ 25 ] All of this creates a very difficult situation. T.T. is not having parenting time determined by the trial judge to be appropriate, or effectively any such time for that matter. Relatedly, and more importantly, the child is being denied the chance to spend time with her mother and to be parented by her.

On the other hand, the child is obviously entirely settled in Regina and is enrolled in schooling and in the speech therapy program that she requires. [ 26 ] I am reluctant to create the dramatic disruption for the child that would flow from the implementation of the trial decision if that decision might be overturned or significantly altered on appeal. In the end, therefore, I reluctantly conclude that it will be in the child’s best interests if the trial decision is stayed pending the appeal and if the parenting scheme along the lines of the one proposed by J.L. is put in its place.

This will serve to maintain the familiarity and stability of Regina as homebase with schooling and therapy for the child in the immediate term while giving T.T. extended parenting time, albeit only if she can arrange transportation. I am under no illusions about the fact that T.T. faces difficulties in this regard.

Accordingly, I also conclude that every reasonable effort must be made to bring this matter on for hearing as soon as possible so that the circumstances of the child can be sorted out on a permanent basis. [ 27 ] I order, therefore, that the parenting aspect of the trial judge’s decision be stayed pending the argument of J.L.’s appeal. In its place, there will be an order that the child will live primarily with J.L. in Regina with T.T. having parenting time from Wednesdays at 3:30 p.m. to Sundays at 5:00 p.m. This will allow the child’s existing school and speech therapy regimes to be maintained.

As well, it takes account of her bedtime and eating routines. The other aspects of the trial judgment will remain in place. [ 28 ] I also order that the transcripts of the trial be prepared on an expedited basis. [ 29 ] Further, I direct the Registrar to contact Legal Aid with a request that it confirm its representation of J.L. and T.T. at its very earliest opportunity and communicate its decision(

s) in that regard both to them and to the Court. (J.L. and T.T. say that they have at least a preliminary indication from Legal Aid that it will act for each of them.) V. CONCLUSION [ 30 ] J.L.’s application for a stay is granted on the terms, and with the various ancillary orders, described above. There will be no order with respect to costs. [ 31 ] I will remain seized of this file. The Registrar is requested to set up another case management call in two weeks’ time. My goal here is to push this matter forward with a view to having the appeal heard on June 7, 2023. “Richards C.J.S.” Richards C.J.S.