The respondent mother sought a stay pending appeal of an Ontario Court of Justice order requiring her to relocate the children’s primary residence to the Waterloo Region or risk losing primary care to the father.
Applying the test for a stay pending appeal in family law matters, the court considered whether the appeal raised a serious question, whether irreparable harm would occur absent a stay, and the balance of convenience, with the best interests of the children as the overriding consideration.
The court found arguable errors in the underlying decision, including the potential expansion of a prior order requiring the mother only to seek employment in the Waterloo Region into an obligation to relocate, and concerns that the custody determination did not fully engage the statutory best interests factors under the Children’s Law Reform Act.
The court also concluded that forcing a relocation before the appeal could cause irreparable harm to the mother’s employment and disrupt the children’s stability.
The balance of convenience favoured maintaining the status quo pending the appeal.
