Endorsement

Court File No.: FC241/21
Date: 2025-06-23
Superior Court of Justice – Ontario

Re: Cindy Lee Ann Cayen, Applicant
And: Chad Parish, Respondent

Before: T. Price
Counsel:

• Alexander Hodder – Counsel for the Applicant
• Chad Parish – Self-represented Respondent
  Heard: 2025-06-20

Introduction

The Applicant has brought a motion requesting that certain provisions of an order made by Justice Raikes on May 15, 2025 be stayed pending her appeal of the order.

The appeal has been filed in the Divisional Court and lies to that court, with leave, pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.

The motion for leave was brought before the Superior Court of Justice (Family Division) pursuant to s. 74 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (the CLRA) and Rule 63.02 of the Rules of Civil Procedure.

Section 74 of the CLRA provides that an order under Part III of the Act, which addresses parenting issues, “is effective even if an appeal is taken from the order, unless the court that made the order or the court to which the appeal is taken orders otherwise.”

Rule 63.02(1)(a) of the Rules of Civil Procedure, which pertains to appeals to the Divisional Court and the Court of Appeal, provides that:

“An interlocutory or final order may be stayed on such terms as are just,
(a) by an order of the court whose decision is to be appealed…”

The Applicant has not yet received leave to proceed with her appeal. However, if appropriate, a stay can be granted while a motion for leave to appeal is pending (Re Essar Steel Algoma Inc., 2016 ONCA 138).

I am satisfied that the Superior Court of Justice (Family Division) has the jurisdiction to issue a stay pending appeal, if appropriate, in this case.

The Respondent filed no material for the motion but he was permitted to make representations with respect to the law and did so.

Background

Since their separation in 2021, the parties have been engaged in protracted litigation over the disposition of their jointly owned residence. While that dispute has continued, the Applicant has, most recently, been residing in Fort Erie with the parties’ two children and her new partner. The Respondent has continued to reside in the jointly owned residence.

The Applicant has maintained the mortgage registered against the property in good standing by making the payments without contribution by the Respondent since January 31, 2025, when he stopped contributing. The Applicant’s partner has assisted her with the payments by making financial contributions to her.

On April 11, 2025, Justice Tobin set a time limit for the Respondent to sign a listing agreement for the property to be sold, failing which the Applicant was authorized to list the property for sale without the Respondent’s agreement or signature. On May 27, 2025, Justice Tranquilli ordered that the Respondent vacate the property within 21 days, failing which a writ of possession was to be issued at the request of the Applicant. When the motion was argued on June 20, 2025, the Respondent remained in the residence. A writ of possession has reportedly been issued.

On May 4, 2025, the Applicant brought a Form 14B motion without notice to the Respondent. She alleged that he had failed to return the children to her following his parenting time over the preceding weekend, in contravention of an order made by Justice Hassan dated July 17, 2024.

On May 5, 2025, Justice Campbell made a time-limited ex parte order that the Applicant have sole decision-making responsibility for the children, and that they reside with her. The order was to expire on May 16, 2025. Justice Campbell also adjourned the motion to May 15, 2025, in order to allow the Applicant to serve the Respondent with her motion materials.

On May 8, 2025, the Respondent filed a Notice of Motion, also returnable May 15, 2025, in which he requested:

a. the dismissal of the Applicant’s motion dated May 4, 2025,
b. an order setting aside the order of Justice Campbell dated May 5, 2025, and either
i. an order that the children reside in his primary care on a temporary basis or
ii. that they have no contact with the Applicant’s partner.

If the children were to remain in the care of the Applicant, the Respondent also requested that his parenting time be reinstated.

In his affidavit for the motion returnable May 15, 2025, the Respondent deposed that when the children were in his care over the weekend of May 2-4, 2025, he was informed by one of the children that the Applicant’s partner had been physically maltreating him and often screamed at him, causing him such fear that he had wet himself on more than one occasion. The Respondent further deposed that the child had told him that the Applicant’s partner called him names and that both the Applicant and her partner constantly told both children that they did not want them.

The Respondent deposed that he had contacted both the Children’s Aid Societies in both jurisdictions where the parties reside and the police to report what the children had allegedly said to him.

After hearing the motions on May 15, 2025, Justice Raikes:

a. set aside the order of Justice Campbell dated May 5, 2025; and
b. ordered that the children continue to reside with only the Applicant.

The Applicant was not to reside with her partner. The order provided, as an alternative, that if the Applicant was not prepared to live separate and apart from her partner, the children were to reside in the care of the Respondent.

It is the latter two terms that are under appeal by the Applicant.

Justice Raikes further ordered that the issue of parenting time and primary residence could be revisited once the investigations by police and the Children’s Aid Societies have been completed and the Office of the Children’s Lawyer had provided input.

Test for Leave to Appeal

In McNeil v. Barrett, [2018] O.J. No. 524, Justice Mitrow, as a single judge of the Divisional Court considering a request for leave to appeal a final order, reiterated the three-part test to obtain an order staying a judgment or order pending an appeal articulated by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. They are:

1. whether the appeal raises a serious issue that the order under appeal is wrong;
2. whether a child will suffer irreparable harm if a stay is not granted; and
3. whether the balance of convenience favours a stay.

Justice Mitrow further noted that, for cases involving children, in addition to these three components, courts had added the requirement that the court must be satisfied that it is in the child’s best interests to order a stay.

Is There a Serious Issue That the Order Under Appeal Is Wrong?

Noting that there was some disagreement amongst different courts as to the proper test for demonstrating whether there is a “serious issue” that the order under appeal is wrong, Justice Mitrow concluded that what an Appellant must show is that the appeal is not frivolous or vexatious. As Justice Mitrow noted, the threshold for such a test to be met is low.

In McNeil v. Barrett, Justice Mitrow found that the threshold for establishing that the appeal was not frivolous or vexatious was met where the order under appeal had reversed a long-standing status quo.

In this instance, while Justice Raikes did not directly upend the four-year status quo relating to the children’s primary residence, he did so conditionally, depending on the position taken by the Applicant as to whether she chose to continue residing with her partner.

For the purposes of this motion, I am prepared to find that the Applicant’s appeal raises a serious issue and is, therefore, not frivolous or vexatious. However, in doing so, I concur with the view expressed by Justice Mitrow that the fact that an appeal may not be frivolous or vexatious does not equate to a prediction that the appeal will succeed.

Will the Children Suffer Irreparable Harm if a Stay Is Not Granted?

As I noted during the motion, this portion of the three-part test is problematic for the Applicant.

The test focuses on the children, not the Applicant.

The Supreme Court held in RJR-MacDonald Inc. v. Canada (Attorney General) that:

"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

This definition arose from that articulated by the Supreme Court in its earlier decision in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, that irreparable harm is “harm not susceptible or difficult to be compensated in damages.”

The Applicant submitted that the irreparable harm that the children would suffer would arise from the fact that the parties’ former residence might be sold by the mortgagee under power of sale proceedings or foreclosed upon because of the Applicant’s inability to continue making mortgage payments as a result of her forced separation from her partner, who may be required to secure new accommodation at some cost to him and, as a result, be unable to help her with the mortgage payments.

This could lead to the Applicant receiving a lesser sum from the sale of the residence than might be the case if the parties maintained control of the property’s sale, either jointly or by the Applicant, alone, by means of court orders.

The Applicant deposed in her affidavit for the motion that her partner is, at present, residing rent-free with his parents. Without explanation, she further deposed that, while her partner’s situation “is sustainable in the very short term, it cannot be sustained beyond that.” Neither her partner nor his parents, or either of them, provided evidence on that point.

In his submissions, Mr. Hodder further noted that the Respondent is in arrears of child support and that Justice Tranquilli has under reserve the issue of whether part of the net proceeds of sale should be segregated for the purposes of funding the arrears. He suggested that, if Justice Tranquilli were to decide that a reserve is necessary, the forced sale of the property might result in the loss of the reserve, which would mean the loss of funds to address arrears of child support, which could result in irreparable harm for the children.

However, on further questioning, it appears that the arrears are, at this point, only theoretical. They are based not on a claim that the Respondent has not been paying child support since 2022 but on a claim that the amount that he has been paying monthly since then might not be the proper amount that his income would mandate under the Child Support Guidelines. That is a question for future consideration.

The question, therefore, that needs to be answered on the road to determining whether these circumstances would create irreparable harm for the children is this:

Does it create a situation of irreparable harm for a child if the child’s primary parent receives less money as the result of the forced sale of a former residence than that parent would receive if the sale of the property did not occur in forced circumstances?

I will assume that the answer to that question is, “maybe, depending on the parent’s overall financial circumstances.” They were not provided to me on the motion, however.

Instead, in responding to my questions, Mr. Hodder estimated that, if the parties were to maintain control of the sale of their jointly owned residence, each might receive as much as $70,000.00 out of the equity. Assuming that to be the case, a forced sale might well result in less than $70,000 for each party. I readily concede that the loss of equity would be financially problematic for the parties. That, however, is different from finding that the children are being irreparably harmed.

Faced with that issue, Mr. Hodder submitted that a loss of equity would necessarily mean the loss of any segregated funds that Justice Tranquilli might establish for purposes of paying arrears of child support.

However, at this point, there are no segregated funds. It is not even clear if there are any arrears of child support.

Moreover, should the forced sale of the residence result in any equity for either partner, the funds can be held in trust by court order pending the determination of what, if any, amount is owed by the Respondent for child support.

Lastly, the focus is harm to the children that cannot be compensated in damages. They would have no claim against their father if his actions resulted in the Applicant receiving less from the sale of the jointly owned residence than otherwise might have been the case if the Respondent had not obtained the order from Justice Raikes. Any such loss is the Applicant’s, not theirs.

Moreover, even if there are no funds left over after a forced sale, the children’s loss of child support is enforceable by the Family Responsibility Office and is, as a result, quite capable of being “cured” through the enforcement process.

As a result, I find that the Applicant has not established that the children would suffer irreparable harm if the stay sought by the Applicant is not granted.

As a result, I need not consider the other components of the test for a stay.

Conclusion

Consequently, the Applicant’s motion is dismissed, without costs.

Justice T. Price
Date: 2025-06-23