The irreparable harm to the children is a primary consideration
The BC Court of Appeal has upheld an order allowing the mother to relocate with her two children to Germany.
In J.T.P. v. K.S., 2023 BCCA 303, the parties were married in 2008 and separated in 2016. They have two children together. The family law trial judge issued an order permitting the children to relocate with their mother to Germany. The mother intended to take the children to Germany in time to begin the school year. The father applied for a stay of execution of the judge's order.
The BC Court of Appeal explained that the father bears the burden of establishing the right to a stay. Generally, the ultimate consideration is whether granting a stay is in the interest of justice. However, the court stressed that a relocation order is not based on the interests of the contending parties but rather on the best interests of the children who are the subject of the relocation order.
The tripartite test for a stay pending appeal requires proof that there is a serious question to be tried, that there will be irreparable harm if the court does not grant a stay, and that the balance of convenience favours granting the stay. The court emphasized that the "irreparable harm" test must relate to the children. The court cited case law explaining that irreparable harm to the best interests of a child is not found in mere disruption to the children's lives. There must be evidence of exceptional circumstances demonstrating potential harm to the child or some injury that is "real and significant" and is more than a transitory disturbance.
After carefully reviewing the evidence, the court was not satisfied that refusing a stay would lead to irreparable harm to the children. The court noted that the marriage breakup can negatively affect the children, mainly when the parents live so far apart, and the relationship with one parent will be significantly affected.
The appeal court found that the trial judge gave extensive reasons explaining why it was in the children's best interests to reside with their mother and to have considerable physical separation between their parents. The judge considered the relocation and affording all decision-making authority to the mother will further the children's best interests by minimizing conflict between the parties. The judge also thought relocation would insulate the children from the continued effects of family violence and the toxic interpersonal dynamics between their parents.
While the trial judge recognized that the relocation would negatively affect the relationship between the children and their father but was satisfied that the mother had provided a parenting plan that would mitigate this adverse effect to the extent reasonably possible, accordingly, the appeal court was satisfied with the trial judge's reasoned conclusions.
Furthermore, the court explained that the balance of convenience generally requires a consideration of the effect of granting or refusing a stay in all the circumstances. The trial judge’s finding that relocation is in the children's best interests strongly influenced the appeal court to ultimately conclude that a stay of the relocation is not warranted.
Accordingly, the court ruled that the balance of convenience favours the dismissal of the stay application.
