C.B. v. P.C. et al., (2003) 346 A.R. 121 (CA)

• Judge: Russell, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 29, 2003
• Citations: (2003), 346 A.R. 121 (CA);2003 ABCA 321

C.B. v. P.C. (2003), 346 A.R. 121 (CA);

    320 W.A.C. 121

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. NO.020

C.B. (respondent/appellant) v. P.C. and S.C. (appellants/respondents)

(0303-0240-AC; 2003 ABCA 321)

Indexed As: C.B. v. P.C. et al.

Alberta Court of Appeal

Russell, J.A.

October 31, 2003.

Summary:

A child's father was convicted of murder and sentenced to life imprisonment with no eligibility for parole for 14 years for the death of the child's mother. Custody and access proceedings were commenced. The trial judge granted sole guardianship and sole custody to the maternal grandmother and terminated the paternal grandparents' guardianship and access. The paternal grandparents appealed and applied for a stay pending the appeal.

The Alberta Court of Appeal, per Russell, J.A., dismissed the application, but gave directions for an expedited appeal.

Family Law - Topic 1918

Custody and access - Appeals - Stay pending appeal - In considering an application for a stay in a matter involving the guardianship, custody and access of child, the Alberta Court of Appeal, per Russell, J.A., stated that the second and third branch of the tripartite test had to be modified to reflect the paramount importance of the best interests of the child - Those interests mandated a consideration of whether the child would suffer irreparable harm from the denial of a stay and it was those interests that would ultimately determine the balance of convenience - Any harm to the applicants from the denial of a stay was subordinate to the best interests of the child - See paragraph 4.

Family Law - Topic 1918

Custody and access - Appeals - Stay pending appeal - A father of a child born in November 2001 was convicted of second degree murder and sentenced to life imprisonment with no eligibility for parole for 14 years for the death of the child's mother - Custody and access proceedings were commenced - The trial judge granted sole guardianship and sole custody to the maternal grandmother and terminated the paternal grandparents' guardianship and access - The paternal grandparents appealed and sought a stay pending the appeal - The Alberta Court of Appeal, per Russell, J.A., denied a stay, but ordered an expedited appeal - The court considered the child's age, the lack of evidence of any adverse impact upon her from the denial of access and the prospect of an early appeal date which would obviate any possible harm to her relationship with the paternal grandparents - Irreparable harm had not been established and the child's best interests did not tip the balance of convenience in favour of a stay.

Guardian and Ward - Topic 368

Appointment and qualifications of guardian - Practice - Stay of proceedings pending appeal - [See both Family Law - Topic 1918 ].

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See both Family Law - Topic 1918 ].

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See both Family Law - Topic 1918 ].

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 3].

G.R. v. C.M., [2003] A.R. Uned. 418 (C.A.), refd to. [para. 3].

Fielding v. Steele (1995), 174 A.R. 296; 102 W.A.C. 296 (C.A.), refd to. [para. 3].

Slezak v. Slezak (1993), 149 A.R. 51; 63 W.A.C. 51 (C.A.), refd to. [para. 3].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 4].

Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), refd to. [para. 4].

T.G. v. Mi'kmaw Family and Children's Services (2003), 211 N.S.R.(2d) 218; 62 A.P.R. 218 (C.A.), refd to. [para. 4].

Fulton Insurance Agencies Ltd. v. Purdy (1991), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 4].

Counsel:

J.D. Kiriak, for the appellant;

D.L. Baradziej, for the respondent.

Russell, J.A., of the Alberta Court of Appeal heard this application on October 29, 2003, and delivered the following reasons for judgment on October 31, 2003.