The Applicant applied for a Stay of enforcement pursuant to Rule 14.48, pending Appeal of a prior Decision permitting the Respondent to relocate the parties’ two children from Edmonton, Alberta, to Surrey, British Columbia. The Court may order a Stay pending Appeal if the Applicant can prove that: 1) there is a serious question to be determined on Appeal, 2) the Applicant will suffer irreparable harm if the Stay is not granted and 3) the balance of convenience favours granting the Stay. The Court will also consider whether there are exceptional circumstances justifying a Stay. Lastly, in a parenting context, the test is modified to prioritize the best interests of the children.

On the first branch, the Court stated that the threshold for a serious question in this context is very low. The Applicant’s Appeal grounds were arguable and related to the best interests of the children. Therefore, the threshold requirement was met.

On the second branch, Fagnan J. found that the Applicant failed to establish irreparable harm. The Applicant pleaded that by allowing the Respondent to move with the children it would uproot the children’s school, community and support while limiting his parenting time. However, the Respondent had already found new employment, enrolled the children into a new school and found housing in Surrey. Moreover, there was no evidence that the children had particularly strong ties to the community in Edmonton, aside from the Applicant and his family. The Court also noted that the children had long been in the Respondent’s primary care and benefitted from that stability. Further, the Applicant’s own recent parenting arrangements, which included time spent in Calgary, undercut his argument that Edmonton provided necessary stability.

On the third branch, Fagnan J. held that the balance of convenience favoured the Respondent’s position. The Respondent already took significant steps to relocate the children before the new school year, and the children were expecting the move. The Trial Judge also contemplated regular virtual contact and upcoming parenting time during the Christmas school break, reducing any immediate disruption to the Applicant’s relationship with the children. 

The Court concluded that although there was a serious issue for Appeal, the Applicant failed to establish irreparable harm or that the balance of convenience would favour his position. Further, no exceptional circumstances were present to justify a Stay.

In the result, the Application for a Stay pending Appeal was denied. The Court prepared the resulting Order pursuant to Rule 9.4(2)(c).