Aug 24, 2016

Grandparent Access to Grandchildren; Test to Stay Trial Order Pending Appeal; Trial Judge Retains Jurisdiction

N.S. v R.S., 2016 NSCA 55 (CanLII)

Keywords: Motion for Stay; Best Interests of Child; Family Law; Fulton test; Gillespie v. Patterson, 2006 NSCA 133 (CanLII); Reeves v. Reeves, 2010 NSCA 6 (CanLII)


Associate Chief Justice Lawrence O’Neil (the Trial Judge), is asked to resolve a dispute over how much contact 2 ½ year old B.A.S. will enjoy with his paternal grandparents, R.S. and L.S. While B.A.S.’ father was alive, R.S. and L.S. visit “usually weekly and sometimes more” (see para. 12). Following B.A.S.’ father’s death, the frequency of these visits declines.

A dispute regarding B.A.S.’ father’s estate prompts “hard feelings”, resulting in a period of no contact between B.A.S. and his paternal grandparents.

Following a full day hearing, the Trial Judge directs a detailed access plan that B.A.S. spend day-long visits with his grandparents every second weekend as follows (see para. 2):


1. R. and L. S. shall enjoy access with the child, B.S., according to the following schedule and according to the following terms:

a. Beginning immediately and continuing until the end of July 2016, R. and L.S. shall have access with B. every ten (10) days for two (2) hours each visit.

i. Until the end of June 2016, these visits shall take place at a neutral site agreed by the parties, and N.S. may be present during these visits.

ii. Beginning July 1, 2016, access may be at a location determined by R. and L.S., and N.S. may no longer attend access visits.

b. Beginning August 1, 2016, and continuing until the end of November 2016, R. and L.S. shall enjoy access with B. every ten (10) days for four (4) hours each visit.

c. Beginning December 1, 2016, and continuing until otherwise agreed by the parties or by further order of the court, R. and L.S. shall enjoy access with B. every second weekend, for one (1) day to be agreed by the parties, from 10:00 a.m. to 4:00 p.m.

d. Over the Christmas holiday, R. and L.S. may enjoy access with B. for two (2) hours at a time agreed by the parties.

e. Any additional access shall be as agreed by the parties.

f. Should B. be unable to attend an access visit due to illness or any other reason, access will be made up as agreed by the parties.

g. B.’s sisters, J.S. and T.S. may attend any access visits.

B.A.S.’ mother takes issue with the plan; asks the Court of Appeal to stay the order. B.A.S.’ mother’s biggest concern involves visits with R.S. and L.S. where she will not be in attendance – B.A.S.’ mother argues such visits would be traumatic for her son and, as such, the plan introduces risks not worth taking. The Court of Appeal is not persuaded to grant the stay; does not accept a stay would be in B.A.S.’ best interests and finds there are no “special and persuasive” circumstances.


Where an appellant seeks to stay the execution of a trial order pending appeal, Courts apply the Fulton test (see Fulton Insurance Agencies Ltd. v. Purdy (1990), 1990 CanLII 2357 (NS CA), 100 N.S.R. (2d) 341 (C.A. in chambers)). To secure a stay, the appellant must establish:

  1. that the appeal raises an arguable case to consider;
  2. that the appellant will endure irreparable harm without a stay; and
  3. the balance of convenience favours granting a stay.

Pursuant to Fulton, even where these criteria are not established, “…exceptional circumstances may command a stay in the interest of justice” (see para. 4).

Citing Gillespie v. Patterson, 2006 NSCA 133 (CanLII), a decision of Cromwell J.A. (as he then was) the Court of Appeal explained, “…when it comes to family law, a child’s best interests must always be an overriding consideration with significant deference to the trial judge” (para. 5). The Court of Appeal confirmed increased deference is owed because determining custody issues and the best interests of a child is necessarily a fact-driven inquiry within the discretionary powers of the Trial Judge.

At para. 6, the Court of Appeal refers to the decision of Reeves v. Reeves, 2010 NSCA 6 (CanLII). There Fichaud J.A. stated, “…when a child’s custody, access or welfare is at issue, the consideration of irreparable harm and balance of convenience distils into an analysis of whether the stay’s issuance or denial would better serve, or cause less harm to, the child’s interest” (see para. 21 of Reeves).

In order to justify a stay which would alter the status quo and interfere with a child’s need for stability, the Court must be persuaded there are “special and persuasive circumstances” in the case.

In the present matter, the fact the Trial Judge retained jurisdiction and indicated he would conduct a review in January, 2017 (if necessary) was noteworthy for the Court of Appeal (see para. 7). Citing Grant v. Grant, 2008 NSCA 51 (CanLII), the Court concluded the retention of jurisdiction called for even greater deference to the Trial Judge’s findings.

Ultimately, the Court of Appeal could not accept granting a stay was in the best interests of B.A.S. as to do so would set aside the Trial Judge’s detailed access plan and was likely to interrupt or “cut off” (as had occurred previously) the relationship between B.A.S. and his paternal grandparents. As such, the motion for stay was dismissed with costs in the cause of the main appeal.

Counsel for the Appellant: Matthew Conrad (Quackenbush Thomson Law, Halifax, Halifax)

Counsel for the Respondents: Nicole MacIsaac (Casey Rodgers Chisholm Penny Duggan LLP, Dartmouth)