Court of Appeal for Ontario

Citation: Hodgson v. Johnston, 2015 ONCA 731 Date: 2015-10-29 Docket: M45435 (C60746)

Before: Feldman, Lauwers and Benotto JJ.A.

Between:

Sheri Hodgson and Frank Watt Moving Party (Appellants)

and

Emary Johnston Responding Party (Respondent)

and

Jason Mamounis Responding Party (Respondent)

Counsel: Sarah Young, for the appellants Farrah Hudani, for the respondent, Emary Johnston Jonathan Kline, for the respondent, Jason Mamounis

Heard: October 27, 2015

On a motion for a review of the order of Roberts J.A., dated August 12, 2015, granting a stay of the order of Gunsolus J., dated June 29, 2015.

Endorsement

[1] The maternal grandparents of an 8-year-old child brought an application for an order granting them custody. In the course of the application, the grandparents moved for interim custody in order to prevent the mother’s intended move to British Columbia with her child.

[2] Gunsolus J. dismissed the motion, awarded custody to the mother allowing her to move with her child, on consent of the father, to British Columbia. The grandparents were granted access to the child at various times during the year, including every July, and every other Christmas break and March break.

[3] The grandparents appealed the order to this court. The appeal is scheduled to be heard on November 24, 2015. At the same time, the grandparents brought a motion for a stay of the custody order pending appeal. The stay was granted.

[4] The grandparents filed extensive affidavit evidence in support of their motion for a stay. The mother did not. Instead, the mother properly relied on the material filed before the motion judge in the court below.

[5] When the motion judge in this court granted the stay of the custody order, she had a misleading record before her. The record should have consisted of the evidence before the motion judge below, unless the fresh evidence met the test in R. v. Palmer, [1980] 1 S.C.R. 759.

[6] A judge hearing a motion for a stay of an order must consider and balance three factors: (1) whether there is a serious issue to be tried on the appeal; (2) the risk of irreparable harm if the stay is or is not granted; and (3) whether the balance of convenience favours a stay.

[7] In a custody case, these factors are also informed by a consideration of whether a change in custody was ordered in the court below. A stay should arise from the need to preserve the status quo or on proper fresh evidence under the Palmer test. Here, it did not.

[8] The evidence before the motion judge below was that the mother had a plan of care, family connections in British Columbia and a stable employment opportunity. The judge found that the mother had been the primary caregiver. His reasons for decision include the following statements:

• “There’s no evidence that [the mother] ever abdicated her position as mother, but has used the extended family safety net extensively.”
• “Nowhere in the materials is there any evidence that [the mother] is not a capable, loving, mother.”
• “There is no evidence that the move will put [the child] in any danger”.
• In quoting another case, he said: “The ultimate test is the best interests of the child”.

[9] It was not appropriate on a stay motion to reverse the factual findings of the motion judge in the decision under appeal, particularly on the basis of additional evidence filed on the motion for a stay that did not meet the Palmer test.

[10] We find that the test for a stay was not met. As a result, the order granting a stay of the custody order is set aside. The mother – whose position was supported by the father – has undertaken to this court to remain in Fenelon Falls until the disposition of the appeal.

[11] The costs of this motion are reserved to the panel hearing the appeal.

“K. Feldman J.A.” “P. Lauwers J.A.” “M.L. Benotto J.A.”