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An Ontario court recently considered an interesting case where one party sought a stay of two orders pending appeal.


The Parties’ Story

The parties were the parents of a five-year-old child. They separated when the child was approximately one year old. The child resided primarily with the mother after the parties’ separation, until June 2018 (as outlined further below).

In June 2018, the mother was found in contempt of court for relocating the child’s residence from one city in Quebec to another (in breach of a previous order), and for interfering with the father’s access (in breach of two previous orders). The judge imposed a penalty of $3,000 for the contempt, and also awarded the father interim sole custody and primary residence of the child pending trial.

In July 2018, the mother was awarded specified access pending trial.

The mother then brought a motion seeking a stay of the June and July orders pending appeal.


The court explained that in order to obtain a stay, the moving party needs to establish that:

  • there is a serious issue to be tried;
  • there will be irreparable harm if a stay is refused; and
  • that the balance of convenience favours granting a stay of the order(s).

The court then noted that this test has been modified in child parenting cases (as was the case here). In those situations, the overriding consideration, reflected in this three-part test, must be whether granting a stay of the order is in the best interests of child.


The Court’s Decision

The court considered the evidence and found that the mother did not meet the three-part test outlined above. The court therefore dismissed the mother’s motion.

Serious Question to be Tried

The court concluded that the mother met this part of the test. It noted that, in this case, the father’s notice of motion only sought residential custody during any period of incarceration that might be imposed on the mother in consequence to a contempt finding (i.e., the father did not request interim sole custody and primary residence of the child pending trial). While a judge will only order relief that was not requested by a parent in their pleadings in the most exceptional cases, the judge clearly believed that she was faced with exceptional, urgent circumstances in June, especially considering the mother’s contempt in unilaterally moving the child. That said, there was a lack of formal notice that a change in interim custody and residence would be sought. Furthermore, the judge failed to tell the mother what she was considering so the mother could respond more fully to the concerns in this regard. As a result, there was a serious question to be tried.

Irreparable Harm

The court found that the mother did not meet this part of the test. While the mother made submissions that were rooted in the status quo, she herself had willfully changed the child’s place of residence and prevented a full restoration of the status quo.

The court also noted that the child had been residing in the father’s home since the June order and was doing well.

As a result, the court concluded that the mother had not established that granting a stay was required in the child’s best interests.

Balance of Convenience

The court found that the balance of convenience favoured dismissing the mother’s motion for a stay. It noted that the trial was scheduled to start in one month, and that the child was better served by leaving the residential arrangements as they were for that short period of time (rather than requiring the child to move to a new environment with the potential for another move after the trial outcome was known).


Lessons Learned

In deciding whether or not to grant a party’s motion to stay an order, the court will consider a three-part test. In cases such as this one, where there is a question relating to custody, the court will also put the best interests of the child at the forefront of its analysis.

If you have questions about your separation or divorce, contact Gelman & Associates. Our lawyers – who are knowledgeable and compassionate, but also tough when necessary – provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (416) 736-0200 or 1-844-736-0200, or contact us online for an initial consultation.

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