CHOW v RICHERT

The Applicant father applied for a Stay of a parenting mobility Order that permitted the Respondent mother to relocate the parties’ children from Cold Lake, Alberta to Edmonton, Alberta (the “Mobility Order”).

Justice Feth adopted the tripartite-test for stay Applications set out in RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311. Feth J.A. also confirmed that, in matters involving children, the application of this test is guided by the best interests of the children, and that parenting Orders are generally afforded a high degree of deference absent an error in principle.

Although the Applicant established a serious issue for determination, the Court found that the Applicant failed to satisfy the second element of the test, as the evidence did not establish irreparable harm if the Stay was denied. Justice Feth added that, even if irreparable harm had been established, the balance of convenience favoured rejecting the Stay, given that the parenting arrangement predating the Mobility Order was no longer viable.

The Court dismissed the Application and awarded costs to the Respondent.