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Family - Child - Stays

. Suarez Oria v. Farzan

In Suarez Oria v. Farzan (Div Ct, 2026) the Divisional Court considers a variation on the RJR stay test where the interests of a child are involved:

[3] The test for granting a stay is well-established. The party seeking the stay must establish that (1) on a preliminary assessment of the merits of the case, there is a serious issue to be determined; (2) irreparable harm will be caused if the stay is not granted; and (3) the balance of convenience favours granting a stay: A.A. v. Z.M., 2024 ONCA 923, 504 D.L.R. (4th) 139, at para. 17.

[4] The first prong of the test has been met as leave to appeal has been granted, although I note that leave was granted on only one of the several issues raised by the moving party. Leave was not granted on the issues of whether the motion judge gave proper consideration to evidence of family violence or the status quo. The motion judge’s factual findings on those and other issues are entitled to deference.

[5] The focus of the irreparable harm prong of the test in cases such as this is irreparable harm to the child: Closner v. Closner, 2019 ONSC 703 (Div. Ct.), at para. 33. The mother’s affidavit suggests that there have been negative behavioural changes in the child since the order under appeal took effect and that he has had difficulties with bowel movements which his pediatrician has said were “most likely related to emotional cause.” This evidence has not been challenged. However, the issue is not whether the child should spend any time with his father, as the mother acknowledges that he should spend every other weekend with him. Rather, the issue is whether spending the next four weekends with his father in accordance with the terms of the temporary order (which has the child spending alternating weekends with each parent after December 7, 2026), would result in irreparable harm to the child. I am not satisfied that it would.

[6] The focus of the third prong of the test is also on the child: Closner, at para. 40. The motion judge carefully created a schedule for gradually increasing the father’s parenting time, including by having him initially spend every weekend with the father. The balance of convenience does not favour altering that plan halfway through.