Citation: McAleer v. Farnell, 2008 NSCA 78
Date: 20080822
Docket: C.A. 298737
Registry: Halifax
Between:
Helen Maeve McAleer
Appellant
v.
Jason David Edward Farnell
Respondent
Judge: The Honourable Chief Justice Michael MacDonald
Application Heard: August 14, 2008, in Halifax, Nova Scotia, In Chambers
Held: Application granted, without costs.
Counsel: Terry E. Farrell and Lisa Bevin, articled clerk, for the appellant
Paul Drysdale, for the respondent
Decision:
[1] Judge Robert J. White of the Family Court recently transferred the primary care of the parties' five year old boy, Cole, from his mother, Helen Maeve McAleer, to his father, Jason David Edward Farnell. They remain joint custodians. Ms. McAleer has appealed this decision. She has applied to set the appeal down for hearing. I have done this and the matter will be heard this December 11th. Ms. McAleer has also asked me to stay the execution of this order pending her appeal. For the reasons that follow, I grant this application.
BACKGROUND
The Child
[2] Cole David Farnell turned five this month. He will start school in September. When his parents separated in October of 2005, they consented to a joint custody order whereby Cole would spend 50% of his time with each parent. Meanwhile, Mr. Farnell has two children from a previous marriage and travels from his home in Springhill to New Brunswick every second weekend to see them.
[3] In 2006, Ms. McAleer began a new relationship with Mr. William Booth and they now have a son, Christian, who, this Spring, had his first birthday. This year Mr. Booth accepted a new job that required him to relocate to Truro - a 45 minute drive from their Mapleton, Cumberland County home. The new family decided to relocate and to accommodate this, Ms. McAleer, in February of this year, applied to the Family Court to become Cole's primary caregiver. Mr. Farnell countered with his own application for primary care.
[4] Judge Robert J. White heard the matter on June 4th and 5th.. On June 23rd he ruled in Mr. Farnell's favour. With both parents significantly involved in Cole's life and with both seeking primary care, the judge faced a difficult choice. In tipping the scale for the respondent, he noted the benefits of Mr. Farnell's extended family and the difficulties Mr. Farnell would have if he had to exercise access in New Brunswick with his older children and then in Truro with Cole:
From the evidence, it is clear that both parents are equally capable of providing all of the necessary care for their child and to be able with some assistance from extended family on both sides to attend to his every need. The Applicant seeks to maintain primary care with her and move the child to Truro and the Respondent resists the application and seeks [primary care].
. . .
The ultimate mandate of the court pursuant to the provisions of the relevant legislation is to do what is in the best interests of the subject child. A court called upon to determine the issue of custody, must of needs be, make a decision premised upon the minuscule snapshot of the whole of the lives of the parties before the court. The parties during the length of the totality of their relationship have a much better knowledge and understanding of the larger picture of their lives together. From the commencement of their relationship until its final determination.
. . .
Taking into consideration all of the evidence presented at the hearing; the contents of the affidavits filed by the parties respectively; the cross examination of the affiants; the relative circumstances of the respective parties; the submissions of counsel; the authorities and indeed related cases following the principles enumerated in these authorities and ultimately the most important issue, the best interests of the child. I have come to the conclusion that those interests would be better served if primary care was vested in the Respondent with generous access to the Applicant at all times when the child was not in school or otherwise on vacation. I am satisfied that the availability of the Respondent’s extended family, who already have been actively involved with the child, is greater than the speculative assistance that may be provided by her extended family. Moreover, at his tender age he will continue to have contact with others, such as his small friends and those he may know when he starts school. Also, if the Respondent were to continue to be an access parent this child would suffer a loss of access as his father would, of necessity, be travelling in lengthy opposite directions in order that the child would have some contact with his paternal step-siblings.
[5] Ms. McAleer promptly appealed this decision and seeks to stay execution of this order.
Analysis
[6] My ability to direct a stay is set out in our Civil Procedure Rules:
Stay of execution
62.10. (1) The filing of a notice of appeal shall not operate as a stay of execution of the judgment appealed from.
(2) A Judge on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution of any judgment appealed from or of any judgment or proceedings of or before a magistrate or tribunal which is being reviewed on an appeal under Rules 56 or 58 or otherwise.
(3) An order under rule 62.10(2) may be granted on such terms as the Judge deems just...
(7) Where the execution of a judgment is stayed pending an appeal, all further proceedings in the action other than the issue and recording of the judgment in the office of the Registrar of Deeds and the taxation of costs thereunder, shall be stayed unless otherwise ordered by the Court or a Judge. [Amend. 17/1/77]
[7] Hallett, J.A. in Purdy v. Fulton Insurance Agencies Ltd. (1990), 100 N.S.R. (2d) 341 at pp. 346-47, expressed what has now become the well known basic test:
In my opinion, stays of execution of judgment pending disposition of the appeal should only be granted if the appellant can either
(1) satisfy the Court on each of the following: (i) that there is an arguable issue raised on the appeal; (ii) that if the stay is not granted and the appeal is successful, the appellant will have suffered irreparable harm that it is difficult to, or cannot be compensated for by a damage award. This involves not only the theoretical consideration whether the harm is susceptible of being compensated in damages but also whether if the successful party at trial has executed on the appellant's property, whether or not the appellant if successful on appeal will be able to collect, and (iii) that the appellant will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted; the so‑called balance of convenience.
OR
(2) failing to meet the primary test, satisfy the Court that there are exceptional circumstances that would make it fit and just that the stay be granted in the case.
[8] Because the present application involves a child custody order, special considerations apply. This is because custody decisions are inherently fact‑based and trial judges are best poised to make these difficult calls. See: Children’s Aid Society of Halifax v. J. (B.M.), [2001] N.S.J. No. 405 (N.S.C.A. [in Chambers]).
[9] The stay of a child custody order therefore can be justified only with special and persuasive circumstances that directly affect the child's best interests. See Routledge v. Routledge, [1986] N.S.J. No. 195 (N.S.C.A.); Grant v. Grant, [2008] N.S.J. No. 241, 2008 NSCA 51; Crewe v. Crewe, [2008] N.S.J. No. 316, 2008 NSCA 68.
[10] Ms. McAleer lists many grounds of appeal that, having reviewed all he documents on file, I conclude raise arguable issues. She asserts:
1. That the Learned Trial Judge erred in law in failing to render sufficient reasons for his conclusions and, in particular, reasons which are sufficient to permit meaningful review on appeal.
2. That the Learned Trial Judge erred in law by not giving proper weight to the factors outlined in the cases of Gordon v. Goertz (1996), 2 S.C.R. 27 (S.C.C.) and Foley v. Foley (1993), 124 N.S.R. (2d) 198 (N.S.C.A.).
3. That the Learned Trial Judge erred in law by giving insufficient respect to the Appellant’s views as the primary care giver of the child.
4. That the Learned Trial Judge erred in law by failing to give sufficient consideration to the disruption that a change in primary care would have on the child.
5. That the Learned Trial Judge erred in law by giving too much weight to the Respondent’s cost of access and loss of access that would result if the child were relocated to Truro and not enough weight to the loss of access that would occur to the Appellant, as the primary care giver as a result of the decision to give primary care to the Respondent.
6. That the Learned Trial Judge erred in law by giving too much weight to the support of the Respondent’s extended family and not enough weight to the availability of the Appellant as a stay-at-home mom.
7. That the Learned Trial Judge erred in law by failing to give sufficient consideration to the child’s relationship with the Appellant’s other children and the child’s relationship with her current partner.
8. The Learned Trial Judge misapprehended the evidence of the short distance of the proposed move.
9. The Learned Trial Judge misapprehended the evidence that the child would have less time to spend with the Respondent’s other children if he were to reside with the Appellant in Truro.
10. The Learned Trial Judge erred in law and/or misapprehended the evidence by failing to consider whether maintaining the previous custody arrangement was in the best interests of the child.
11. Such further and other grounds of appeal as may appear from a reading of the transcript.
[11] Furthermore, in this case, I see special circumstances that, considering Cole’s best interests, prompt me to grant the stay. Specifically, should a stay be granted, I am persuaded by Ms. McAleer’s proclaimed commitment to postpone her proposed relocation and to remain in her Mapleton home pending the appeal. This is significant because it will maintain the status quo and afford Cole the same lifestyle he enjoyed before the Family Court applications. Furthermore, it is clear from the record that Mr. Farnell was, all along, completely content with this arrangement and was motivated to seek primary care solely in response to Ms. McAleer’s proposed relocation to Truro with Cole. As well, this plan represents the least disruptive scenario regardless of the outcome of the appeal. For example, should the appeal be dismissed, Cole will move from his mother’s Mapleton home to his father’s home which is nearby and there will be no need for him to change schools. Should the appeal be allowed, Cole may relocate with his mother to Truro. By granting the stay, this would result in only one move - from Mapleton to Truro. I say this because with both parents enjoying extended block access over the Summer, it cannot be said that Cole has yet completely relocated to his father’s Springhill home. For example, I note the following in Mr. Farnell’s affidavit:
19. THAT: The Appellant suggests in her Affidavit that I am being difficult in dealing with her over access. While I believe that any disputes over access and the wording of the Court Order in relation to access should properly be dealt with before the Trial Judge, I can state that
(a) Cole was with his mother until June 26, three days after the decision of Judge White was rendered;
(b) Cole spent four days with me, from June 26 to June 29;
(c) Cole then spent two weeks with his mother, from June 29 to July 11;
(d) Cole returned to my care on July 11, which was the two weeks summer access I have with my two older children. I note that, above and beyond certain difficulties I had in dealing with the IWK Children’s Hospital regarding an appointment which Cole had there and which the Appellant attempted to cancel, I have now had to deal with this application during the time I have this summer to spend with all three of my children.
(e) I have suggested to the Appellant that Cole be in her care from July 25 to July 29 and from August 8 to 22, leaving me in a position to get Cole ready to start school for the first time in September.
[12] Yet, without the stay, Cole will make the complete move to Springhill in the coming months. Then, should the appeal be allowed, Cole in the space of a few months will have ended end up moving from Mapleton to Springhill and then potentially to Truro, all in the year that he starts school.
[13] In short, Ms. McAleer has raised arguable issues that will be fully considered by this court in four months’ time. In the meantime, I have the option of preserving the status quo, a choice that Judge White was not offered but also a choice that Mr. Farnell was completely content with prior to Ms. McAleer’s proposed move. In these special circumstances, taking advantage of this opportunity works best for Cole.
[14] The application is granted but without costs.
MacDonald, C.J.N.S.