It is rare that the Court of Appeal grants a stay of enforcement of a lower court order and this is one of those rare cases. In the recent Alberta Court of Appeal decision, Lloyd-Martinez v Martinez, 2021 ABCA 13, the Court considered the appellant Mother’s request to stay the parenting schedule ordered in case management. Under the new Order, the parents would split parenting time 50/50 and the visits would no longer be supervised.
Although the Father had made significant efforts to strengthen his relationship with the children, the Mother maintained that, amongst other things, the children did not feel safe or supported in their Father’s care. The Father continued to assert that the children felt alienated from him due to the Mother’s influence and coaching.
In her decision, the Court considered the regular test for a stay requires that requires the applicant to establish that:
- there is a serious question to be tried;
- there will be irreparable harm if the stay is not granted; and,
- the balance of convenience favors a stay.
However, in the context of parenting, the Court held that the above test must be modified “to reflect the paramountcy of [children’s] best interests” and must further establish 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 challenge 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…”; and
- “the children will suffer irreparable harm resulting from the granting or denial of the stay.”
Ultimately, the new parenting schedule was stayed.
For those interested, please check out the full case on CanLii here: https://canlii.ca/t/jcn3x
Ronald S. Foster, Q.C. – https://www.flslaw.ca/ronald-s-foster-qc