The Saskatchewan Court of Appeal recently considered Rule 15 of the Court of Appeal Rules, which formerly provided that the filing of a notice of appeal operated to stay the execution of the order under appeal. Effective as of Jan. 1, 2023, Rule 15 was amended and now falls in line with the practice in all other provinces in Canada, where a stay application must be brought if an appellant wishes to prevent execution of the order from the court below.
In J.L. v. T.T. [2023] S.J. No. 120 the court heard a stay application, the first under the amended Rule, from the father of a 3-year-old girl, B.L., who had raised his daughter in Saskatoon since her birth in 2019, with the assistance of his mother. The child’s mother, T.T., had acquiesced to her limited parenting time, a situation that affected her bond with the child and her mental health. The parties had never cohabited.
T.T., who had two other young children, sought mental health treatment and in May 2019 she unilaterally removed B.L. from her father’s home and took B.L. to her home on Mother’s Day. In June 2019 J.L. brought an application for interim primary parenting time and supervised access for T.T. B.L. was now back in J.L.’s home. In August 2019 the court ordered that the parties would share joint custody and equal parenting time on a five-day rotation.
This order upset J.L. who declined to see his daughter for over two months. In October 2019 J.L. recommenced his parenting time. Between October 2019 and December 2019, the parties shared parenting time. On Dec. 31, 2019, J.L. advised T.T. that he was relocating from Saskatoon to Regina for his employment and to benefit from his parents’ support. He assured T.T. that he would transport B.L. to and from Saskatoon, as T.T. did not have a vehicle.
This arrangement quickly deteriorated as J.L. did not return B.L. to her mother in January 2020, which led to an interim application and an order that J.L. return B.L. to her mother’s home, with compensatory parenting time ordered.
The COVID pandemic created further problems resulting in multiple court applications and resulting in six court orders, some with police assistance clauses, requiring J.L. to return B.L. to T.T. J.L. refused to fulfil his promise to provide transportation for B.L. to her mother’s home in Saskatoon.
At trial the court considered evidence that included J.L.’s unwillingness to foster the relationship between B.L. and her mother; T.T.’s Indigenous heritage and her plans for the child’s care moving forward (in the absence of a plan from J.L.); the parties’ inability to co-operate and communicate with one another; T.T.’s limited financial resources to travel to Regina; and J.L.’s behaviour in failing to comply with the court’s previous orders of shared parenting.
In a 42-page judgment the trial court ordered the parties to share decision-making responsibilities and awarded primary parenting of B.L. to T.T. in Saskatoon. J.L. was granted parenting time on three weekends a month in Saskatoon and extended vacation parenting time. J.L. was also ordered to pay child support arrears of $36,942 and ongoing child support of $713 a month. It was the parenting order that J.L. sought to have stayed.
The Court of Appeal reviewed the amended Rule 15, referring to the decision of RJR-MacDonald Inc. v. Canada (Attorney-General) [1994] S.C.J. No. 17 for the proposition that “the same principles should be applied by a court whether it is an injunction or a stay.” The factors to be considered are:
a) An assessment of the strength of the appeal;
b) An assessment of irreparable harm if the judgment is enforced and the nature of such harm;
c) An assessment of the balance of convenience, by weighing the risks of relative harm to each of the parties and an accommodation of a range of equitable and other considerations.
The Appeal Court granted the stay, reasoning that J.L. had articulated “serious grounds of appeal,” including the following:
a) The trial judge based her decision on facts not in evidence;
b) The imposed parenting arrangement was unworkable as the appellant lived and worked in Regina, while the respondent was not employed.
c) The trial judge failed to consider the strength of the child’s relationship with each parent;
d) The trial judge failed to consider that the child had lived with her father for over three years;
e) The child had special needs, is enrolled in preschool in Regina, is not toilet-trained, is non-verbal and sees a speech therapist in Regina.
As a term of the stay, the Appeal Court provided parenting time for the child’s mother every week from Wednesday at 3:30 p.m. to Sunday at 5 p.m., with transportation to be arranged by T.T.
My assessment of the trial judge’s decision is that she was not impressed with J.L.’s ongoing and concerted efforts to thwart his daughter’s relationship with her mother by repeatedly refusing to adhere to previous orders of the court. The evidence indicated that he refused to provide basic medical information concerning B.L. to T.T. and misrepresented the parenting arrangements to B.L.’s medical professionals. The reasons reveal that J.L. was a high-income earner, while T.T. was on social welfare and did not receive any financial assistance from J.L., in the form of child support or financial assistance to enable her to travel to Regina and back.
It also appears that he failed to provide the court with a parenting plan that would see him retain primary parenting, but account for the necessity of T.T.’s active engagement and parenting of B.L. Further, there was no evidence suggesting that T.T. was not a proper and fit parent. While she suffered from anxiety and depression, she was receiving counselling and medication that relieved her of any distracting symptoms. She was also successfully raising two other children, according to evidence proffered by her family support worker from the Ministry of Social Services.
Before the reasons were handed down, J.L. brought multiple applications to the trial judge, including an application to submit fresh evidence and reopen the trial which the court agreed to entertain, together with several additional applications, filed without leave of the court; for disclosure of a tape recording, drug testing for T.T., supervised parenting for T.T., and a parenting assessment order.
The court dismissed all of J.L.’s applications finding that his delay in proceeding with the applications and the numerous court conference calls was his attempt to stall the decision process and delay the release of the court’s reason.
The Appeal Court determined that the appeal be expedited to be heard in June 2023.
**This article was first published in Law360, a division of LexisNexis Canada.
Lawdiva's Blog 