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Family - Stay Pending Appeal. 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.
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