Leis v. Leis, 2011 MBCA 109

• Judge: Chartier, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: Thursday December 15, 2011
• Jurisdiction: Manitoba
• Citations: 2011 MBCA 109;(2011), 275 Man.R.(2d) 55 (CA)

Leis v. Leis (2011), 275 Man.R.(2d) 55 (CA);

      538 W.A.C. 55

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. JA.008

Cheryl Evonne Leis (petitioner/respondent) v. David William Leis (respondent/applicant)

(AF 11-30-07615; 2011 MBCA 109)

Indexed As: Leis v. Leis

Manitoba Court of Appeal

Chartier, J.A.

December 21, 2011.

Summary:

A mother obtained an order granting her, among other things, the primary care and control of the parties' children and permission to move with the children to Seattle, Washington. The father appealed and moved for a stay pending the appeal.

The Manitoba Court of Appeal, per Steel, J.A., in a decision not reported in this series of reports, stayed the custody provisions of the order, which included the move to Seattle.

The Manitoba Court of Appeal, in a decision reported at [2011] Man.R.(2d) Uned. 89, dismissed the appeal. The father applied for leave to appeal and moved for a further stay pending the determination of his application.

The Manitoba Court of Appeal, per Chartier, J.A., dismissed the motion.

Family Law - Topic 1918

Custody and access - Appeals - Stay pending appeal - A father obtained a stay pending his appeal from the custody provisions of an order - The appeal was dismissed - The father applied for a further stay pending his application to the Supreme Court of Canada for leave to appeal - The Manitoba Court of Appeal, per Chartier, J.A., stated that the "serious question" element of the RJR-MacDonald test had to be considered in light of two additional factors where the father was seeking a second appeal - First, the Supreme Court had strict leave requirements (Supreme Court Act, s. 40(1)) - To meet the "serious question" criterion, the question generally had to be of public or national importance or raise an issue of legal importance - As leave had yet to be granted, the stringent leave requirements were a factor to be considered on the "serious question" component - Second, the decision of first instance had already been reviewed and upheld by an appellate court - That meant that questions raised required appellate deference and/or were not considered to be sufficiently serious to constitute reversible error by the appeal court - There generally had to be a compelling reason to cause a single appellate judge to take a different view of the questions - Thus, the threshold on the "serious question" factor was much higher on application for a stay pending leave to the Supreme Court than those for a stay pending an appeal to provincial appellate courts - Moreover, while the three RJR-MacDonald factors were interconnected, a stay would typically be denied if a party failed to establish the "serious question" component of the test - Additionally, where this was a child custody and mobility case, the second and third components of the test had to be adapted to take into account the best interest of the children - See paragraphs 3 to 7.

Family Law - Topic 1918

Custody and access - Appeals - Stay pending appeal - A father obtained a stay pending his appeal from the custody provisions of an order - The appeal was dismissed - The father applied for a further stay pending his application to the Supreme Court of Canada for leave to appeal - The Manitoba Court of Appeal, per Chartier, J.A., dismissed the motion - The father had not established that there was a serious issue to be tried - The appellate court concluded that appellate intervention was unwarranted - The court was not convinced that the Supreme Court would not accord the same level of deference - Moreover, the court was not convinced that the proposed appeal raised matters of public or national importance - The law on mobility applications was settled by the Supreme Court and the father had not suitably explained which principles of that area of law should be revisited - With respect to the irreparable harm factor, the court failed to see how the children leaving Canada, in compliance with the trial judge's order, would negatively impact on the father's leave application - Any order in Canada was enforceable in Seattle - The father had not pointed to an instance where the mother had not returned with the children as and when she said she would - The balance of convenience also favoured a stay - The father asserted that it was best to maintain the status quo - The reality was that the status quo was no longer available - The mother had sold her house out of financial necessity and her temporary living accommodations in Winnipeg would no longer be available at the end of the month - She and her new husband had purchased a residence in Seattle and had taken steps to enroll the children in school in Seattle - More importantly, the father had not established that a stay would be in the children's best interest - See paragraphs 8 to 13.

Practice - Topic 9096

Appeals - Supreme Court of Canada - Stay of proceedings pending appeal - [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, appld. [para. 3].

BTR Global Opportunity Trading Ltd. et al. v. RBC Dexia Investor Services Trust (2011), 283 O.A.C. 321; 2011 ONCA 620, refd to. [para. 4].

Turf Masters Landscaping Ltd. v. T.A.G. Developments Ltd. and Dartmouth (City) (1995), 144 N.S.R.(2d) 326; 416 A.P.R. 326 (C.A.), refd to. [para. 4].

Nova Scotia (Minister of Community Services) v. B.F. and B.W. (2003), 219 N.S.R.(2d) 67; 692 A.P.R. 67; 2003 NSCA 125, refd to. [para. 4].

Hart v. DuBois (2011), 268 Man.R.(2d) 303; 520 W.A.C. 303; 2011 MBCA 75, refd to. [para. 6].

Child and Family Services of Western Manitoba v. K.B. et al. (2006), 205 Man.R.(2d) 31; 375 W.A.C. 31; 2006 MBCA 48, refd to. [para. 7].

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. 9].

Counsel:

J.G.E. Young and K.S. Brownell, for the applicant;

T.P. Beley, for the respondent.

This motion was heard in Chambers on December 15, 2011, by Chartier, J.A., of the Manitoba Court of Appeal, who delivered the following judgment on December 21, 2011.