We’ve previously blogged about grandparents’ access rights to grandchildren. This week we explore a custody battle between two sets of grandparents over their two grandchildren whose mother had passed away.

Background Facts

The biological mother of the children in question passed away in July 2013. At the time, the children were approximately one and four years old. The children’s biological father cared for them until December 2013, at which point he delivered them to his step-parents (the “step-grandparents”), claiming that he was not able to continue to care for the children.

Not long after the children came to be in the care of the step-grandparents, the maternal grandmother of the children and her common law partner (the “maternal grandparents”) expressed an interest in caring for the children. They filed an application for custody in April 2014. The maternal grandparents lived in British Columbia, but in order to pursue their custody claim and maintain a close relationship with the grandchildren, the maternal grandmother moved to Kirkland Lake, Ontario in July 2014. The maternal grandmother regularly had the children in her care since her move. She indicated that if she and her husband were awarded custody they would move the children to B.C.

Both sets of grandparents petitioned for custody. The original custody trial took place in early 2016. The original trial judge found in favour of the maternal grandparents and ordered the children to be put in their care effective August 2016. The court recognized that the children would be moving to B.C, but made provisions for extended summer and holiday access for the step-grandparents.

The step-grandparents indicated that they would be seeking an appeal of the order, but in the immediate interim they applied for a motion seeking stay of order’s provisions pending the ultimate appeal.

Appealing a Custody Order

Section 74 of the Children’s Law Reform Act, provides that a custody order remains effective even if that order is appealed, unless the court makes an exception. The party appealing the order is responsible for showing why a stay (i.e. a stop) to the order is warranted.

In order to establish that a stay is needed, the party seeking the stay must show that:

  • There is a serious question that the original judgment is wrong;
  • The children will suffer irreparable harm if a stay is not granted;
  • The balance of convenience favours a stay.

As with anything pertaining to children in family law disputes, the overriding consideration in the analysis is the best interests of the children, and the court must ultimately be satisfied that the stay is in their best interest.

Here, the court considering the motion for the stay noted the comments of the Divisional Court in a previous case, where a judge stated:

In custody and access cases, irreparable harm and the balance of convenience are inextricably linked and “distils into an analysis of whether the stay’s issuance or denial would better serve, or cause less harm to, the child’s interest”.  G.(A.) v. B. (J.) 2008 ABPC 316 (CanLII), 2008 CarswellAlta 191 (C.A.) at para. 12 where Justice Watson noted that “one has to look at the three parts of the test holistically, connecting irreparable harm with balance of convenience when little children are involved.” Reeves v. Reeves2010 CarswellNS 39 (C.A.) at para. 21.

Applying the Test

Serious Issue on Appeal

The court noted that, given the short period of time between the issuance of the custody order, and the stay motion, it was not possible to provide a detailed analysis of the various proposed appeal grounds. The court did note some aspects of the original trial judge’s decision might ultimately constitute a serious question on appeal, including:

  • The extent of the trial judge’s consideration of the time the children had lived in a stable home with the step-grandparents, particularly in light of their age;
  • The extent to which the trial judge examined the stability of the maternal grandparents’ common law relationship; and
  • The trial judge did not readily reveal the reasons he preferred the maternal grandparents over the step-grandparents.

Irreparable Harm

The court noted that the children have had significant turmoil in their lives.

If the stay was not ordered, the children would be relocated to British Columbia within days. If the step-grandparents were then ultimately successful in their appeal, the children would then once again be relocated to Ontario. The court viewed this as potentially being quite harmful to them.

If the stay was ordered, the children would remain in the care of the step-grandparents for a time. If they were ultimately unsuccessful in their appeal, the children’s relocation to B.C would simply have been delayed by the appeal hearing.

The court noted that this was not a situation where the children had been removed from the care of the step-grandparents because they were unable to adequately parent the children. In fact, the trial judge had found that the step-grandparents loved the children, had strong emotional ties to them, the children had a loving relationship and bond with them, and that the children were in a stable home environment with them.

There was little harm that would come to the children if they remained in the care of the step-grandparents pending the resolution of the appeal.

In considering the potential harm to the children in having the order stand pending the appeal versus the virtual absence of harm in staying the order pending appeal, the court concluded that it was “obvious” that issuing the stay was appropriate.

The court issued the stay, and noted that it was crucial that the appeal process move quickly so that a permanent custody arrangement, and the stability and security that comes with such an arrangement, could be determined.

The children were ordered to be delivered into the care of the step-grandparents, and that the step-grandparents and the maternal grandparents share the care of the children during the school year.

If you have questions about child custody, particularly in complex circumstances involving grandparents or other extended family, contact Windsor family lawyer Jason Howie. Jason takes the time to listen to the needs of each client, helps you consider all of your options, and provides you with the best recommendation. Call 519.973.1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.