Simon's Megalomaniacal Legal Resources

Family - Stay Pending Appeal

. Ahmed v. Abdelmoaein

In Ahmed v. Abdelmoaein (Ont CA, 2025) the Ontario Court of Appeal considered a stay pending leave to appeal (to the Supreme Court of Canada) motion, here in a family law Hague Convention context.

Here the court considers the stay pending leave to appeal, which is the standard RJR test with 3 additional factors: 1. it is a leave request, 2. it is brought in a family law child's 'best interest context', and 3. it is made to the Supreme Court of Canada:

[24] The test for a stay pending appeal is set out in RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, and requires the court to consider: whether there is a serious question to be argued on appeal; whether the applicant will suffer irreparable harm if the stay is refused; and, on a balance of convenience, which party would suffer greater harm from the granting or refusal of a stay: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16; J.P.B. v. C.B., 2016 ONCA 996, 2 R.F.L. (8th) 48, at para. 14. The factors are not watertight compartments – the strength of one may compensate for weakness of another. The overarching consideration is whether the interests of justice require a stay: International Corona Resources Ltd. v. Lac Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.).

[25] In cases involving children, “the overriding consideration … is the best interests of the child. In other words, the court must be satisfied that it is in the best interests of the child to grant a stay”: N. v. F., 2021 ONCA 688, 158 O.R. (3d) 565, at para. 36, citing D.C. v T.B., 2021 ONCA 562, at para. 9, and K.K. v. M.M., 2021 ONCA 407, at para. 17. The mandatory return provisions under the Hague Convention, subject only to limited exceptions, presume that a child’s best interests are usually aligned with their prompt return to the jurisdiction of their habitual residence: see F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387, commenting on analogous return provisions in provincial legislation. At the same time, the requirement of the Hague Convention to secure the “prompt return of children” in appropriate cases does not translate into a more stringent test for a stay: Maharaj v. Maharaj (2001), 2001 CanLII 4919 (ON CA), 146 O.A.C. 317, at para. 15.

Serious Issue to be Tried

[26] When the request is for a stay pending leave to the Supreme Court of Canada, the serious question component must be considered in light of two additional factors: the strict leave requirements of the SCC, under which the proposed appeal must present a question of public or national importance or raise an issue of legal importance; and that the decision of first instance has already been considered by an appellate court: Leis v. Leis, 2011 MBCA 109, 275 Man. R. (2d) 55, at paras. 4-5. As stated in Leis, at para. 6, “the threshold on the ‘serious question’ factor is much higher on applications for stay pending appeal to the Supreme Court of Canada than those for stay pending appeal to provincial appellate courts.” See also BTR GLobal, at para. 18; N. v. F., at paras. 24-25.

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[28] In my view, the mother’s proposed appeal does not raise a serious issue to be tried in the context of a leave application to the Supreme Court. It raises questions of neither national nor legal importance. The law on the questions she raises is well-settled, with extensive direction already in place from the Supreme Court to guide lower courts. The mother’s proposed appeal seeks to re-argue factual findings that can only be displaced based on palpable and overriding error.

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Irreparable Harm to the Applicant or the Child

[34] Irreparable harm is characterized by the nature, rather than the magnitude of harm. It is harm which either cannot be quantified in monetary terms or cannot be cured, usually because one party cannot collect damages from the other: RJR MacDonald Inc., at p. 341.

[35] A parent cannot engineer harmful circumstances and then rely on that “self-engineered harm” to indefinitely frustrate a return order: F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387, at paras. 82, 166.

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Balance of Convenience

[39] Assessing the balance of convenience requires the court to determine which party will suffer greater harm from the granting or refusal of a stay, as determined on the unique facts of each case.

[40] Where a child’s interests are at the heart of the appeal, the child’s best interests are the overarching consideration.

. De Longte v. De Longte

In De Longte v. De Longte (Ont CA, 2025) the Ontario Court of Appeal considered the RJR stay pending appeal test:

The Test for Granting a Stay

[7] An order that is not stayed automatically may be stayed pursuant to r. 63.02(1) of the Rules of Civil Procedure. The test for staying an order pending appeal is established in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. The test requires the court to determine whether a stay is in the interests of justice considering the following three factors:

(1) a preliminary assessment of the merits to ensure that there is a serious question to be tried;

(2) whether the applicant would suffer irreparable harm if the application were refused; and

(3) an assessment of the balance of inconvenience as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[8] The relative strengths of these factors need not be equal, but all three factors must be satisfied for the court to grant a stay: Carvalho Estate v. Verma, 2024 ONCA 222, at para. 5; R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12. I will analyze each factor in turn.

[9] First, when making a preliminary assessment of the merits, the court must keep in mind the standard of review on appeal: Carvalho Estate, at para. 8. Absent an error of law or a palpable and overriding error of fact, the trial judge’s decision will be upheld on appeal: Carvalho Estate, at para. 8; Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 104. However, the threshold for finding a serious issue is low: Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859, at para. 9. The Supreme Court of Canada in RJR-MacDonald Inc., at p. 337-38, noted:

Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial.

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[11] Second, irreparable harm is characterized by its nature, rather than its magnitude. In other words, it is usually harm that cannot be quantified or cured: RJR-MacDonald Inc., at p. 341. Although Michael spoke about his ongoing financial difficulties, he did not demonstrate that paying child support would result in “permanent and non-compensable harm”: Temagami, at para. 11.

[12] Finally, when assessing the balance of convenience, the court on a stay motion must recognize that the matter was previously adjudicated and the order must be regarded as prima facie correct: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 678, citing Battle Creek Toasted Corn Flake Co. v. Kellogg Toasted Corn Flake Co. (1923), 55 O.L.R. 127 (C.A.), at p. 132. The interests of third parties might also be relevant at this stage: Ducharme v. Hudson, 2021 ONCA 151, at para. 25. In staying the child support order, the parties who would suffer are the children.

. Collins v. Tiveron

In Collins v. Tiveron (Ont CA, 2024) the Ontario Court of Appeal dismissed a motion to stay the order below pending appeal (decided on RJR grounds):

[21] I also deny Mr. Collins’ other motion, M55117, requesting a stay of the orders made by Baker J. and Smith J. relating to the Interim Child Support Appeal Decision. The test that governs motions to stay pending appeal is well-established: see e.g., BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16. I must consider and balance the three-part test developed in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, for interlocutory injunctions:

(1) Whether the appeal raises a serious question to be tried.

(2) Whether the moving party will suffer irreparable harm if the stay is refused.

(3) Whether the balance of convenience favours granting or refusing the stay.

. Dieffenbacher v. Dieffenbacher IV

In Dieffenbacher v. Dieffenbacher IV (Ont CA, 2023) the Court of Appeal sets out the test for stay pending appeal, here in an international family law case:

[10] The governing principles are well known. I adopt the words of Hourigan J.A. in Zafar v. Saiyid, 2017 ONCA 919, at paras. 17-18:

The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, requires the court to consider the following factors: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A. [In Chambers]), at para. 8; Warren Woods Land Corp. v. 1636891 Ontario Inc., 2012 ONCA 12 [In Chambers], at para. 1.

These three factors are not watertight compartments; the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay: International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.); Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102 [In Chambers], at paras. 14-15.

[11] This motion must also be considered through the lens of the Hague Convention. As Benotto J.A. stated in J.P.B. v. C.B., 2016 ONCA 996, at para. 33:

Applications pursuant to the Hague Convention are to be dealt with expeditiously. Continuing delays frustrate the purpose of the legislation, favour the non-complying parent, and postpone the determination of the children's best interests in the country where they are habitually resident.

[12] I agree with Hourigan J.A.’s comment in Zafar, at para. 26:

I adopt the reasons of Roberts C.J. of the United States Supreme Court in Chafin v. Chafin (2012), 133 S.Ct. 1017, at p. 1027, as quoted in Balev in para. 35:

In cases in which a stay would not be granted but for the prospect of mootness, a child would lose precious months when she could have been readjusting to life in her country of habitual residence, even though the appeal has little chance of success. Such routine stays due to mootness would be likely but would conflict with the Convention's mandate of prompt return to a child's country of habitual residence. [Emphasis added.]

[13] To the same effect see Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 33, where the Supreme Court states: “A clear purpose of multilateral treaties is to harmonize parties’ domestic laws around agreed-upon rules, practices, and principles. The Hague Convention was intended to establish procedures common to all the contracting states that would ensure the prompt return of children”, as the Hague Convention’s preamble stipulates.