This case involved the parental custody of children who were citizens of Canada, South Africa, and the United Kingdom (UK). The family resided in Canada until 2019, when the mother, a British permanent resident, relocated to the UK with the children for work. In 2023 and 2024, the children returned to Canada but were not sent back to the UK as ordered, leading to a dispute over their habitual residence and custody.

The Chambers Judge, pursuant to the International Child Abduction Act, RSA 2000, c I-4 (the ICAA) and the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), ordered that the children be returned to the UK to live with their mother (the Order). The father, a Canadian citizen, applied for a Stay pending Appeal of the Order under Rules 1.3 and 14.48.

Justice Feehan noted that Applications for Stay pending Appeal under the ICAA and the Hague Convention follow the same general principles as other Stay Applications, focusing on the best interests of the children. Feehan J. clarified that the traditional tripartite test is modified in family law cases, including those under the ICAA and the Hague Convention. The test requires determining: (i) whether there is a serious issue on Appeal that is not frivolous or vexatious; (ii) whether the child will suffer irreparable harm if the Stay is denied; and (iii) whether the balance of convenience favours granting or denying the Stay, considering the child’s best interests. Even if the test is not fully satisfied, the Court must assess whether the interests of justice call for a Stay.

Courts often identify a serious question to be tried when the best interests of children are involved. Justice Feehan held the father’s concerns were serious and not frivolous or vexatious, satisfying the first part of the test. Feehan J. emphasized that the irreparable harm and the balance of convenience factors must be assessed holistically based on the children’s best interests. The father argued that denying the Stay would render the Appeal meaningless, disrupting the children’s routine in Alberta, and exposing him to legal risks in the UK. In contrast, the mother contended that granting the Stay would disrupt the children’s education, stability, and her employment in the UK. Feehan J. determined that moving the children back and forth pending the Appeal would cause irreparable harm to their well-being, tipping the balance of convenience towards dismissing the Stay Application. While the father claimed that denying the Stay would reward the mother for removing the children to the UK before the hearing, Feehan J. emphasized that the children’s best interest must come first, and the Appeal panel would decide any consequences for the mother’s breach of the Court Order.

Consequently, the Application for Stay pending Appeal was dismissed.