HDO v MDF

The Appellant mother, MDF, sought a Stay pending Appeal of an Order that directed the children of the parties be returned to Alberta. The Appellant violated a prior Court Order by taking the children to Ontario without notifying the Respondent, which prompted the Order directing the children’s return. The Respondent father, HDO, opposed the Stay Application.

Per Rule 14.48, Justice Friesen considered the test for a Stay pending Appeal in a case involving children, which required considering (1) whether there was a serious question to be determined; (2) whether the children would suffer irreparable harm resulting from granting or denying the Stay, in light of the best interests of the child; and (3) the balance of convenience and best interests of the children.

The Appellant argued that enforcing the Order before the Appeal was heard would endanger her life and health, and violate her section 7 rights pursuant to the Charter of Rights and Freedoms because returning to Alberta would prevent her access to life-sustaining medication and therapies. The Appellant also argued that enforcing the Order would cause serious risk to the children, claiming that the Respondent had outstanding sexual assault charges involving the children and that he had a history of breaching Protection Orders. Conversely, the Respondent argued that the Appellant had a history of breaching Court Orders and making unfounded allegations, and that her personal health was irrelevant. He argued that there was no serious issue to be tried and that the children would not suffer irreparable harm by returning to Alberta as they had no medical needs justifying their continued stay in Ontario. Rather, they were harmed by the lack of schooling, stability, and contact with their father.

Although the first threshold may have been met, the Court determined that the Stay Application failed when considering the children’s best interests and the irreparable harm they would suffer. The balance of convenience did not favour granting the Order. Friesen J.A. concluded that there was no justification for the children to remain in Ontario, emphasizing the Appellant’s ongoing non-compliance with parenting orders, lack of evidence of harm to the children if returned to Alberta and the instability that would be caused by maintaining the current arrangement. The Appellant’s health and financial challenges did not outweigh the children’s best interests. The Application was dismissed.