The appellant father brought a motion for a stay pending appeal of an Ontario Court of Justice order that transferred the children’s primary residence from him to the mother.
The court reviewed the applicable framework for stays of custody orders under s. 74 of the Children’s Law Reform Act and considered jurisprudence addressing the RJR‑MacDonald test and its modification in family law contexts.
The court found the appeal raised a serious issue, particularly regarding whether the trial judge misapprehended evidence about an ex parte custody order and improperly discounted the status quo.
Given the young ages of the children and the risk of instability if they were moved pending the appeal, the court concluded that their best interests favoured maintaining the current arrangement.
A stay of the trial judge’s custody order was granted pending the appeal.
