N.G. v. R.E., (2010) 301 Nfld. & P.E.I.R. 240 (NLCA)

• Judge: Wells, White and Harrington, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: September 21, 2010
• Jurisdiction: Newfoundland and Labrador
• Citations: (2010), 301 Nfld. & P.E.I.R. 240 (NLCA);2010 NLCA 60

N.G. v. R.E. (2010), 301 Nfld. & P.E.I.R. 240 (NLCA);

    932 A.P.R. 240

MLB headnote and full text

Temp. Cite: [2010] Nfld. & P.E.I.R. TBEd. OC.006

R.E. (appellant/applicant) v. N.G. (respondent)

(10/104; 2010 NLCA 60)

Indexed As: N.G. v. R.E.

Newfoundland and Labrador Supreme Court

Court of Appeal

Wells, White and Harrington, JJ.A.

September 29, 2010.

Summary:

The parties, N.G. (the mother) and R.E. (the father), commenced a common law relationship in 1999 which ended in 2006. Their only child, R., was now nine. At trial, the issues were whether R. had been intentionally alienated from the mother because of the father's action and inaction, and if so determined, which parenting regime would best promote R.'s best interests.

The Newfoundland and Labrador Supreme Court, Trial Division (Family), in a decision reported at (2010), 300 Nfld. & P.E.I.R. 193; 927 A.P.R. 193; 2010 NLTD(F) 18, found "parental alienation". The trial judge granted sole custody to the mother and ordered the immediate transfer of the child to the mother's care, with no access rights for the father for a period of time. The father was directed to undergo counselling, with the goal of restoring equal parenting. The father appealed and applied for a stay of the order. That application was refused. The father then made a fresh application for a stay (rule 57.10) pending determination of the appeal.

The Newfoundland and Labrador Court of Appeal, in a decision reported at (2010), 300 Nfld. & P.E.I.R. 149; 927 A.P.R. 149; 2010 NLCA 51, granted the stay. The mother applied for a rehearing by a three-judge panel (rule 57.31(4)).

The Newfoundland and Labrador Court of Appeal, per Green, C.J.N.L., in a decision reported at (2010), 300 Nfld. & P.E.I.R. 267; 927 A.P.R. 267; 2010 NLCA 56, granted the rehearing application.

The Newfoundland and Labrador Court of Appeal, Wells, J.A., dissenting, hearing the matter de novo, dismissed the application for a stay of the order pending appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1918

Custody and access - Appeals - Stay pending appeal - At issue was the proper legal test for the determination of whether a stay should be granted respecting a family court child custody order pending disposition of an appeal - The Newfoundland and Labrador Court of Appeal referred to recent appellate decisions that had formulated a modified approach to the application of the standard tripartite test, in custody and access cases - "The principle of great deference in custody-access appeals has now been recognized as applicable in stay applications involving these issues ... The overall effect of these decisions is that the tripartite test for a stay pending appeal enunciated in RJR-MacDonald and followed in Rees must be modified in its application to custody and access cases where the best interests of the child is paramount" - As a result, the court summarized the attributes of the modified approach to stay applications in the context of custody and access cases - See paragraphs 14 to 33.

Family Law - Topic 1918

Custody and access - Appeals - Stay pending appeal - At issue in this rehearing was whether the applicant had met the applicable test to support a stay of the child custody order pending disposition of an appeal - The Newfoundland and Labrador Court of Appeal stated that "[w]hile it is left to the appeal panel to judge the merits of the appeal, the concerns that arise regarding the manner in which the appeal is pleaded, the relative strengths and weaknesses of the pleaded appeal grounds assessed on a 'limited review of the case of the merits' (per RJR-MacDonald), and the way in which a stay application is supported by evidence or lack thereof are of crucial importance at this stage" - See paragraph 43.

Family Law - Topic 1918

Custody and access - Appeals - Stay pending appeal - A family court order transferred custody of the parties' nine year old daughter to her mother, following a finding of severe parental alienation - The trial judge ordered the immediate transfer of the child to her mother's care with no access rights for the father for a period of time - The father was directed to undergo counselling with the goal of restoring equal parenting - He appealed and applied for a stay of the order - At a rehearing, the Newfoundland and Labrador Court of Appeal dismissed the application - The primary concern was whether the order placed the child in risk of harm pending the disposition of the appeal - The father had not established that irreparable harm would be caused to the child as a result of the immediate implementation of the order or that the balance of convenience favoured the protection of the child from an apprehended risk of harm - The allegations in seeking a stay were "highly speculative and contrary to the record" - "This panel should be loathe to intervene with a carefully crafted plan to immediately begin the rehabilitation of [the child's] relationship with both of her parents consistent with the principle of 'maximum contact'" - See paragraphs 34 to 56.

Practice - Topic 5948

Judgments and orders - Enforcement of orders - Stay of - [See all 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, consd. [paras. 14, 69].

Rees v. Royal Canadian Mounted Police et al. (2005), 244 Nfld. & P.E.I.R. 72; 726 A.P.R. 72; 2005 NLCA 4, consd. [paras. 14, 69].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, consd. [paras. 15, 75].

Grant v. Grant, [2008] N.S.R.(2d) Uned. 71; 2008 NSCA 51, consd. [paras. 16, 94].

McAleer v. Farnell (2008), 268 N.S.R.(2d) 171; 857 A.P.R. 171; 2008 NSCA 78, refd to. [para. 19].

A.B. v. C.D. (2004), 283 N.B.R.(2d) 138; 740 A.P.R. 138 (C.A.), consd. [paras. 20, 97].

N.L. v. R.L., [2008] N.B.R.(2d) Uned. 12; [2008] W.D.F.L. 1265 (C.A.), appld. [para. 26].

J.B. v. A.G. (2008), 429 A.R. 394; 421 W.A.C. 394; 2008 ABCA 61, consd. [paras. 32, 93].

D.E.M. v. J.M.M., [2010] Nfld. & P.E.I.R. Uned. 22; 2010 PECA 12, refd to. [para. 93].

Kelly v. Condon and Avalon Realty Co. (1987), 65 Nfld. & P.E.I.R. 267; 199 A.P.R. 267 (Nfld. C.A.), appld. [para. 112].

Counsel:

Averill Baker, for the appellant;

Lori Savory, for the respondent/applicant.

This stay application was heard on September 21, 2010, before Wells, White and Harrington, JJ.A., of the Newfoundland and Labrador Court of Appeal. The judgment and reasons for judgment of the Court of Appeal were rendered on September 29, 2010, when the following opinions were filed:

Harrington, J.A. (White, J.A., concurring) - see paragraphs 1 to 57;

Wells, J.A., dissenting - see paragraphs 58 to 115.