The Alberta Court of Appeal considered an application for a stay of a parenting order where the lower court had drastically altered the pattern of parenting that had been in place. In Lloyd-Martinez v. Martinez 2021 ABCA 13, the case management judge increased Mr. Martinez’s parenting time from seven supervised visits per month to shared parenting, with alternating weeks, and no supervision.
After nine years of marriage and two young children, this couple separated in March of 2017. In May of 2017 a protection order was made which barred the father from contacting his wife or the children. Several weeks later the father received an order for 2/12 hours of supervised parenting time every eight days.
By June 2018 a case management judge was appointed and in June 2019 the judge increased the father’s parenting time to five four-hour supervised visits every month. From July 2019 to February 2020 the children were in counselling where the counsellor noted that the parties’ son expressed negative feelings toward his father.
In October of 2019 the father’s parenting time was again increased to seven days out of every thirty, albeit it remained supervised. A year later an application to increase parenting time was heard which included evidence that the father had been in counselling, taken anger management courses, and had engaged in high-conflict parenting courses. The case management judge also observed that the children’s mother has taken steps to alienate the children and rejected her evidence of the father’s alleged bad parenting.
Ms. Lloyd-Martinez appealed the order and sought a stay alleging that her ex-husband did not provide a safe and supportive environment for the children and that their son did not want to spend overnights with his father. The parties’ other child, a daughter, did not express similar feelings.
The Appeal Court considered the usual tripartite test for a stay: (1) Whether there was an arguable case; (2) Whether there would be irreparable harm if a stay was not granted; and (3) Whether the balance of convenience favoured a stay. RJR-MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC), The Court also noted the following
” When dealing with a stay application involving children, a modified test applies to reflect the paramountcy of their best interests… . An arguable case will likely be made out where there is credible evidence that the best interests of the children have been impacted adversely in a significant manner by the lower court’s order, coupled with an arguable case that the challenged order is flawed in some significant manner and that a stay would mitigate those adverse effects and better serve the best interests of the children… In addition to influencing whether there is a serious issue to be argued on appeal, the best interests of the children will modify the irreparable harm and balance of convenience stages of the test. The court must consider whether the children will suffer irreparable harm resulting from the granting or denial of the stay.”
Not surprisingly, the Appeal Court determined there was an arguable issue, the threshold of which is notoriously easy to establish, as the analysis does not require a detailed assessment of the merits of a case.
With respect to irreparable harm, the Court noted that a mere disruption in the children’s lives would not satisfy this part of the test, as the harm required must be “real and significant”. Notably, the parents generally agreed that the father-son relationship was strained, but each parent blamed the other.
The Appeal Court granted the stay. What it came down to was the mother’s role as the children’s primary caregiver since the date of separation and the children’s exposure to their father only under supervised circumstances. The Court held that the radical change in parenting would be destabilizing, particularly given the son’s feelings toward his father and the conflict between the parents.
A final comment: After case managing this high-conflict parenting case for 2/12 years, one must query the Appeal Court’s second-guessing the role of the case management judge and his experience with the parties and their children. Certainly, this gives one pause to consider whether the lauded “deference” to such a judge’s role was respected in this case.
Lawdiva aka Georgialee Lang
**This article was originally published by The Lawyer’s Daily ( thelawyersdaily.ca ) a division of Lexis Nexis Canada