



COURT OF APPEAL FOR ONTARIO

CITATION: Hodgson v. Johnston, 2015 ONCA 731

DATE: 20151029

DOCKET: M45435 (C60746)

Feldman, Lauwers and Benotto JJ.A.

BETWEEN

Sheri Hodgson and Frank Watt

Moving Party (Appellants)

and

Emary Johnston

Responding Party (Respondent)

and

Jason Mamounis

Responding Party (Respondent)

Sarah Young, for the appellants

Farrah Hudani, for the respondent, Emary Johnston

Jonathan Kline, for the respondent, Jason Mamounis

Heard: October 27, 2015

On a motion for a review of the order of Roberts J.A., dated
    August 12, 2015, granting a stay of the order of Gunsolus J., dated June 29,
    2015.

ENDORSEMENT

[1]

The maternal grandparents of an 8-year-old child brought an application
    for an order granting them custody. In the course of the application, the
    grandparents moved for interim custody in order to prevent the mothers
    intended move to British Columbia with her child.

[2]

Gunsolus J. dismissed the motion, awarded custody to the mother allowing
    her to move with her child, on consent of the father, to British Columbia. The
    grandparents were granted access to the child at various times during the year,
    including every July, and every other Christmas break and March break.

[3]

The grandparents
    appealed the order to this court. The appeal is scheduled to be heard on
    November 24, 2015. At the same time, the grandparents brought a motion for a
    stay of the custody order pending appeal. The stay was granted.

[4]

The grandparents filed extensive affidavit evidence in support of their
    motion for a stay. The mother did not. Instead, the mother properly relied on
    the material filed before the motion judge in the court below.

[5]

When the motion judge in this court granted the stay of the custody order,
    she had a misleading record before her. The record should have consisted of the
    evidence before the motion judge below, unless the fresh evidence met the test
    in
R. v. Palmer
, [1980] 1 S.C.R.
    759
.

[6]

A judge hearing a motion for a stay of an order must consider and
    balance three factors: (1) whether there is a serious issue to be tried on the
    appeal; (2) the risk of irreparable harm if the stay is or is not granted; and
    (3) whether the balance of convenience favours a stay.

[7]

In a custody case, these factors are also informed by a consideration of
    whether a change in custody was ordered in the court below.  A stay should
    arise from the need to preserve the status quo or on proper fresh evidence
    under the
Palmer
test. Here, it did not.

[8]

The evidence before the motion judge below was that the mother had a
    plan of care, family connections in British Columbia and a stable employment
    opportunity. The judge found that the mother had been the primary caregiver.
    His reasons for decision include the following statements:

·

Theres no evidence that [the
    mother] ever abdicated her position as mother, but has used the extended family
    safety net extensively.

·

Nowhere in the materials is
    there any evidence that [the mother] is not a capable, loving, mother.

·

There is no evidence that the
    move will put [the child] in any danger.

·

In quoting another case, he
    said: The ultimate test is the best interests of the child.

[9]

It was not appropriate on a stay motion to reverse the factual findings
    of the motion judge in the decision under appeal, particularly on the basis of
    additional evidence filed on the motion for a stay that did not meet the Palmer
    test.

[10]

We
    find that the test for a stay was not met. As a result, the order granting a
    stay of the custody order is set aside. The mother  whose position was
    supported by the father  has undertaken to this court to remain in Fenelon
    Falls until the disposition of the appeal.

[11]

The
    costs of this motion are reserved to the panel hearing the appeal.

K. Feldman J.A.

P. Lauwers J.A.

M.L. Benotto
    J.A.


