Focus On

Custody and access - Contest between parents and non-parents – Rights of non-parents - Grandparents - Practice and procedure - Appeals and judicial review - Stay of order pending appeal

Thursday, August 25, 2016 @ 8:00 PM  


Motion by the mother for a stay of a grandparent access order pending her appeal. The child was 2.5 years old. The child’s father had passed away from cancer the preceding year. The father’s parents sought to maintain a relationship with the child. The mother disputed the extent of the access sought by the child’s grandparents following a dispute over the father’s estate. A May 2016 order provided for two hour visits every ten days. The mother was entitled to be present at visits until July 2016. Between August and November 2016, the visits would increase to four hours every ten days. From December 2016 onward, the grandparents were entitled to access for six hours one day per alternating weekend. The mother appealed, listing 13 grounds of appeal alleging procedural errors that hindered her ability to state her case. She sought a stay of the order pending her appeal.

HELD: Motion dismissed. The mother met the low threshold of establishing an arguable case on appeal. She failed to establish that a stay of the access order was consistent with the child’s best interests. The child regularly visited the grandparents while the father was alive. Their visits decreased in frequency following the father’s death. The mother cut off access in March 2016 after an estate dispute arose. Having regard for the deference owed to the trial judgment, there were no special and persuasive circumstances in favour of a stay arising with the passage of the date upon which the mother’s presence was no longer required at access visits.