Nova Scotia Court of Appeal
Citation: Titus v. Kynock, 2021 NSCA 64
Date: 20210827
Docket: CA 508108
Registry: Halifax
Between:
Luke Gerry Titus
Applicant
v.
Carley Vernessa Kynock
Respondent
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Judge: |
Beaton, J.A. |
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Motion Heard: |
August 20, 2021, in Halifax, Nova Scotia in Chambers |
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Held: |
Motion granted |
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Counsel: |
Linda Tippett-Leary, for the Applicant Leigh Davis, for the Respondent
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Decision:
Introduction
[1] On August 4th, 2021 the appellant Mr. Titus filed a Notice of Appeal concerning a July 12th, 2021 oral decision (“the decision”) of the Honourable Justice Cindy Cormier of the Supreme Court of Nova Scotia - Family Division (“the judge”). That decision, made pursuant to the Parenting and Support Act, R.S.N.S. 1989, c. 160, awarded custody of the parties nine-year-old child J. to the respondent Ms. Kynock. She was also granted permission to relocate the child to reside with her in Idaho in the United States, effective August 15th, 2021.
[2] On August 5th, Mr. Titus filed a motion pursuant to Civil Procedure Rule 90.41 asking the Court to stay the judge’s order pending the outcome of the appeal. I heard the contested motion on August 20th during which both parties were cross-examined on their respective affidavits filed on the motion.
[3] At the conclusion of the hearing I reserved my decision. The motion is granted for the reasons that follow.
[4] Owing to the compressed timeframe in bringing the motion before the Court, I did not have the benefit of a transcript of the judge’s oral decision.[1] On August 17th I listened to the audio of the decision on the official court record (Voxlog). Subsequent to that, counsel filed a copy of the order signed by the judge, as issued on August 16th.
[5] To assist with putting matters in context, I also accessed the Family Division’s Running File[2] from the Civil Index System (CIS 2) database. It provided a summary of filings and court appearances in the litigation between the parties and allowed a better understanding of certain aspects of the evidence before me.
The Proceedings in the Family Division
[6] The parties first secured an interim order in November 2016; they were to share joint custody of J., who was to reside with each parent under an alternating week-about schedule. In August 2017 the court determined where the child would attend school. In February 2018, the parties were back before a judge following a series of efforts by counsel and a settlement conference judge to try to achieve a comprehensive consent parenting arrangement. Mr. Titus advised the court he was seeking primary care and residence of the child at the end of that school year. Other issues to be addressed were identified, including travel with J. outside of the country.[3]
[7] April 12th, 2018 was the parties first appearance before Justice Cormier. At least 15 more would follow. Ms. Kynock told the judge she had spoken to a lawyer and did not want to continue to trial or get further legal advice. After some discussion, a detailed parenting plan was reached, providing that at the end of the school year, primary care of five-year-old J. would be with Mr. Titus and Ms. Kynock would have access every second weekend. The schedule for holidays and other times was also identified, as was travel. The matter was adjourned to May 11th, 2018 for a one-hour hearing on whether J. should be vaccinated, and in relation to financial support of the child.
[8] On May 11th, 2018, the judge informed the parties she was uncomfortable with the parenting plan agreed to on April 12th, because she felt Ms. Kynock may have agreed to a resolution due to the stress of the situation. Mr. Titus’ lawyer expressed concern that notwithstanding an agreement having been earlier reached, all issues were being raised again; she advised the judge she would be recommending her client secure new counsel.
[9] By December 3rd, 2018, counsel for Ms. Kynock was asking that the issue of decision-making authority be heard immediately, on an interim basis. She also wanted the matter of parenting reviewed, along with communication, vaccinations, and child support. The judge was advised that in November Mr. Titus had arranged for J. to be vaccinated and have two teeth extracted, without Ms. Kynock’s consent.
[10] Following an interim hearing on December 20th, the judge ordered Ms. Kynock to have primary care of J. and sole decision-making authority. Mr. Titus was given parenting time every second weekend. Neither party was to relocate with J. outside of Nova Scotia without the advance written agreement of the other party or order of the court.
[11] Although the Running File indicates there were efforts over many months by counsel and court staff to obtain a Custody and Access Agreement commissioned by the court, inexplicably it never materialized. By January 2020, efforts were underway to secure an assessor to prepare a Parental Capacity Assessment; trial was scheduled for July 2020. By mid-June 2020, COVID-19 had interrupted the assessment preparation and the July trial was adjourned. At the end of October 2020, the parties were advised by the judge the assessor was no longer available and a new one would have to be found. The parties were to decide on an assessor and advise the court.
[12] By December 2020, the parties had not been able to find a new assessor. On December 21st, the judge advised counsel that upon reviewing the file, she did not feel the completion of any assessment was necessary.
[13] The trial was conducted over five days in June 2021. Counsels’ final oral submissions were made on July 12th, 2021, followed immediately by the judge’s decision. It appears that custody and relocation were determined in lockstep. The judge did not review the history of the matter, but observed she was very familiar with the parties as their case had been before her over a number of years.
[14] I recognize the fact-driven nature of a custody and parenting decision. This Court is not positioned, on a stay motion, to be able to appreciate all of the nuances of the case, however some key themes emerge from the decision.
[15] Although she did not describe it in any detail, the judge relied heavily on the evidence of J’s counsellor, Ms. Singer. She found it “very refreshing to have the expert who knows [J.]”. She was satisfied Ms. Singer “had a sense of where [J.]’s connections are” and that J. is “securely attached” to Mom, not to Dad. She also concluded Ms. Kynock “presents as a very different parent from [Mr. Titus]”, and is the parent who has provided “stability for [J]”.
[16] The judge did not view Ms. Kynock’s pending relocation to Idaho, to live with her husband and his family, as an unusual situation, noting it would involve a distance of 5,000 miles and three different airports.
[17] The judge also revealed she regretted her earlier decision that had imposed a prohibition on either parent travelling with J. and commented “I am struggling that if I place the child with [Mr. Titus] he wouldn’t let the child go to Idaho”. She stated that J. “… is going to Idaho, either to live or visiting. The child needs to get to know the family [J.’s] mother is married into.”
[18] The judge found Mr. Titus had been “extremely difficult to deal with”, had not sought supports and help as he should have, and had not “let go” of his accusations against Ms. Kynock, nor put aside his negative feelings in order to parent equally. She described Mr. Titus, at various points in her reasons, as “intrusive and hypervigilant”, and “unpredictable and emotional”. She said she found certain of his previous actions “exasperating”. Later she described him as “nothing but difficult”, but did not elaborate. She concluded Mr. Titus did not support J’s relationship with Ms. Kynock.
[19] The judge found Ms. Kynock was “better able to satisfy ss. 18(6)(b) and (i)” of the Act (factors used to determine a child’s best interests) and “is clearly better positioned on both those factors”. She recognized J. has never been to Idaho, nor met in person Ms. Kynock’s husband or any of his fourteen children. “I know [Ms. Kynock] has introduced [J.] by phone”. The judge did not see “having all those children around [J.] supporting [J.] as a negative”. She had “no doubt [Ms. Kynock] will have a dentist, doctor, all supports in place [for J.]”, and accepted Ms. Kynock’s testimony there would be “so many more supports” in Idaho. She characterized Ms. Kynock’s plan, which she did not describe, as “quite solid”. In her words, “Wherever Mom is in this world, that’s [J.’s] home”. The judge found it “absolutely necessary” to change the parenting arrangements.
[20] The judge also indicated that she had considered eliminating all parenting time for Mr. Titus, but was instead prepared to have it continue on the basis that she was trusting Ms. Kynock would “ensure contact with dad if in [J.]’s best interests”. Counselling for J. was ordered to continue.
[21] The judge was of the view it was not in J.’s best interest to stay in Nova Scotia, which she said was an “unhealthy environment” as a result of the negativity directed by Mr. Titus toward Ms. Kynock, “the mother to whom [J.’s] connected”. It was also her view that Mr. Titus could not meet J.’s emotional needs.
The appellant’s burden
[22] Civil Procedure Rule 90.41(2) sets out the Court’s powers on the motion for a stay:
A judge of the Court of Appeal on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution and enforcement of any judgment appealed from or grant such other relief against such a judgment or order, on such terms as may be just.
[23] The imposition of a stay of execution is a discretionary remedy (327991 Nova Scotia Limited v. N2 Packaging Systems, LLC, 2021 NSCA 2 at para. 54). The order under appeal is presumed to be correct, until such time as it might be set aside by the panel assigned to consider the appeal (327991 Nova Scotia Limited, supra, at para. 55; Colpitts v. Nova Scotia Barristers’ Society, 2019 NSCA 45 at para. 19). Therefore, the burden rests with Mr. Titus, as the party seeking the stay, to satisfy the Court on a balance of probabilities that it is required.
The parties’ positions
[24] Mr. Titus asserted a stay is necessary because the judge’s decision to permit Ms. Kynock to continue as primary parent of J. in conjunction with a relocation to Idaho will create a profound change in J.’s life. Mr. Titus seeks a stay to avoid having J. undergo that relocation before the appeal is determined.
[25] Mr. Titus argued if J. moves to Idaho while the appeal is underway, it will mean a significant interruption in Mr. Titus’ contact with J., thereby creating upheaval for the child, who is used to spending time with Mr. Titus. He testified J. is anxious about the move and he has tried to encourage J. by speaking positively when the subject arises. Mr. Titus noted J. has extended family in Nova Scotia, the implication being J.’s mother would be the only family member with J. in Idaho.
[26] Mr. Titus pointed to J.’s familiarity with school, extra-curricular activities, and the counsellor Ms. Singer, and advised he will ensure J. remains in the same school for the duration of any stay order. I note this would require Mr. Titus to modify the plan he had put forward at trial, involving relocation to another community, which would have resulted in J. relocating to a different school district.
[27] Mr. Titus described the pending move to Idaho as “monumental” for J., an only child. He is concerned J. will have no face-to-face contact with him before July 2022, according to the schedule set out by the judge’s decision. He argued a stay would permit his child to remain in Nova Scotia, in a familiar situation, and ensure ongoing contact with him, with which the child is also familiar. He contrasted that against a move to rural Idaho where J. would reside with Ms. Kynock and her “new” family, none of whom J. has ever met face-to-face.
[28] Mr. Titus also questioned how the extremely modest financial circumstances of both parents, as put before the judge, could realistically position them to give effect to his parenting time next summer. The order directed the purchase of airline tickets (J.’s by Mr. Titus and Ms. Kynock’s by her, so as to accompany J), which Mr. Titus fears neither party is in a financial position to fund.
[29] Mr. Titus expressed concern about Ms. Kynock travelling internationally with the child when neither of them are vaccinated against the COVID-19 virus. He says this puts the child at unnecessary risk. He questioned the absence of any details or a firm plan on Ms. Kynock’s part for a proper transition of J. to Idaho, with no information as to where J. will attend school or whether J. is even “eligible” to reside in the United States.
[30] Mr. Titus also questioned whether travel by unvaccinated individuals will be permitted in July 2022, given the current uncertainties created by COVID‑19. He submitted this issue alone constitutes “exceptional circumstances” that meet the secondary Fulton test. He maintained international travel is currently highly COVID-19 vaccine-dependent, which could impact J.’s ability to return to Canada with ease during Mr. Titus’ parenting time or if the appeal is allowed.
[31] Ms. Kynock’s position was Mr. Titus did not rebut the operating presumptions that the order was correct, and was made taking into account the best interests of the child. In particular, she pointed to the judge’s conclusion she is the parent better suited to meet J.’s emotional needs. She testified she is considering possibly making the pending trip to Idaho by car, which would avoid some of J.’s anxiety about flying, as that concern was also testified to by Mr. Titus. She provided documentation that confirms she has sourced a counselling service in Idaho to work with J., and she spoke to J.’s ability to chose extra-curricular activities or sports once settled in Idaho.
[32] Ms. Kynock also confirmed she is not now, and is not planning to be vaccinated against COVID-19. She reported the same is so for her husband and those of his family members who reside in his home.
[33] Ms. Kynock emphasized the parties have been in litigation for a number of years, during which time Mr. Titus has been uncooperative and unwilling to effectively co-parent, including having previously lodged a formal complaint against J.’s therapist and reporting Ms. Kynock to child welfare authorities and police.
[34] Ms. Kynock testified that Mr. Titus’ uncooperative style has not abated since the judge’s decision was delivered. In that vein, she provided details concerning the upset to her and the child that occurred during a recent access exchange between the parties earlier this month. Excerpts from the parties’ parenting communication app put before me in evidence chronicled some of their electronic communication leading up to and soon after that event. While each party’s evidence about the event was different, they both described a situation that would have undoubtedly been chaotic and upsetting for the child.
[35] Ms. Kynock also relied on two incidents occurring in 2018 that she maintained illustrate Mr. Titus’ inability to cooperate in parenting J. Mr. Titus arranged for J. to receive a childhood immunization and have two teeth removed, without Ms. Kynock’s input or consent. I have not placed great emphasis on these particular events as they occurred prior to the imposition of the 2019 interim order (which predates the order under appeal) which gave Ms. Kynock authority to make all medical decisions for J.
[36] During cross-examination, Ms. Kynock agreed that the information concerning where J. would attend school and counselling in Idaho was not information that had been put before the judge.
[37] She also agreed that travelling to Idaho, either by car or air, would present a risk of potential exposure to COVID-19, although she was of the view that of the two, car travel presented less risk. Ms. Kynock agreed with counsel for Mr. Titus that the move would be a “significant” one for J., whose family is in Nova Scotia, and that the living situation in Idaho would be “completely foreign” to J.
[38] To her credit, Ms. Kynock was willing to concede or agree on certain points even where doing so was arguably supportive of some aspects of Mr. Titus’ position. By contrast, some of Mr. Titus’ evidence was internally contradictory and confusing such as, for example, whether or not he has actively tried to encourage J. to have a positive outlook on the pending move to Idaho.
The test on a stay motion
[39] The test governing whether to grant a stay is found in the frequently cited decision Purdy v. Fulton Insurance Agencies Ltd., 1990 NSCA 23. The party moving for the imposition of the stay must satisfy the Court that:
i. there is an arguable issue(s) raised by the appeal;
ii. the party will suffer irreparable harm if the stay is not allowed; and,
iii. the party will suffer greater harm if the stay is not granted than would the opposing party if the stay were granted (the “balance of convenience” question).
[40] The above three elements comprise the primary test. If the Court is not convinced on the primary test, it may nonetheless be persuaded on the secondary test: whether there exist exceptional circumstances that make it fit and just to grant a stay. As noted in Y. v. Swinemar, 2020 NSCA 56:
[15] … This latter branch of the test is akin to a safety valve, catching cases that warrant a stay but fall outside the primary three step test (La Ferme D’Acadie v. Atlantic Canada Opportunities Agency, 2009 NSCA 5 at 22).
[41] The Fulton test was developed in the civil context. The order under appeal informs the parties’ obligations to their child, and indirectly, to one another in their respective roles as J.’s parents. It also directs the matters of the child’s residence and health, communications between the parents and Mr. Titus’ parenting time. Therefore, the Fulton analysis, as to whether the appellant has met the burden of establishing the necessity of a stay, is further informed by consideration of the best interests of the child.
[42] In Leyte v. Leyte, 2019 NSCA 41 Beveridge J.A. commented:
[17] Custody and access orders are governed by what is in the best interests of the children. The primacy of best interests does not dissipate on appeal. Numerous decisions that have grappled with stay requests for orders that impact children pending appeal reflect the overlay of best interests into the Purdy v. Fulton test.
[43] Later, in J.H. v. A.C., 2020 NSCA 54, Derrick J.A. explained:
[18] However, the “Fulton” criteria are not the focus in a case involving children. The focus there is on the children’s best interests. The fundamental question to be answered is whether the applicant has demonstrated circumstances of a special and persuasive nature that a stay would better serve, or cause less harm to, the children (Young v. Stephens, 2015 NSCA 86, para. 7, per Bourgeois, J.A.).
[19] Justice Bourgeois, in Young v. Stephens, explained the origins of the onus borne by an applicant for a stay in cases involving children citing Farrar, J.A. in Chiasson v. Sautiere, 2012 NSCA 91:
[15] In Reeves v. Reeves, 2010 NSCA 6, Fichaud, J.A. succinctly summarized the principles from the authorities as follows:
[21] I summarize the following principles from these authorities. The stay applicant must have an arguable issue for her appeal. But, 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. The determination of the child’s interests is a delicate fact driven balance at the core of the rationale for appellate deference. So the judge on a stay application shows considerable deference to the findings of the trial judge. Of course, evidence of relevant events after the trial was not before the trial judge, and may affect the analysis. The child’s need for stability generally means that there should be special and persuasive circumstances to justify a stay that would alter the status quo.
[16] Saunders, J.A. more recently rearticulated the test in Slawter v. Bellefontaine, 2011 NSCA 90:
[21] ... In cases involving the welfare of a child where issues of custody or access arise, the test this Court applies when deciding whether to grant a stay pending appeal is whether there are “circumstances of a special and persuasive nature” justifying the stay. This test originated in Routledge v. Routledge (1986), 74 N.S.R. (2d) 290 (NSCA) and the principle has been consistently applied ever since. ...
See also Beairsto v. Cook, 2018 NSCA 50 at para. 22.
[44] Both the primary and secondary tests found in Fulton, supra, must be examined recognizing not only the presumption the impugned order is correct, but as a custody order, that it was made taking into account the best interests of the child (Green v. Green, 2021 NSCA 15 at para. 11.)
[45] On the first aspect of the primary test I must be satisfied there is an arguable issue(s) such that either party could be successful on appeal (327991 Nova Scotia Limited, supra, at para. 61; Colpitts, supra at para. 26).
[46] The Notice of Appeal filed by Mr. Titus outlines seven discrete grounds asserting various errors of law, and errors of mixed fact and law committed by the judge. Additional grounds allege insufficiency of reasons and an apprehension of bias by the judge. Any of these grounds, if established on appeal, could arguably result in it being successful. Ms. Kynock was correct to acknowledge in her written brief and during the hearing that because the Notice contains “… grounds that include errors of law and/or errors of law and fact, for the purposes of the Stay Motion […] the first part of the Fulton test has likely been met”. I agree and I am satisfied that aspect of the test has been met.
[47] As noted earlier, the second and third branches of the primary test require a reframing to take into account the subject matter of this case. In Reeves v. Reeves, 2010 NSCA 6, Fichaud J.A. reminded the judge considering a stay motion of the need to adjust the Fulton analysis in family law matters:
[20] Fulton’s test is modified in stay applications involving the welfare of children, including issues of custody or access. That is because, in children’s cases, the court’s prime directive is to consider the child’s bests interest. The child’s interests prevail over those of the parents, usually the named litigants, on matters of irreparable harm and balance of convenience.[citations omitted]
[21] I summarize the following principles from these authorities. The stay applicant must have an arguable issue for her appeal. But, 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. The determination of the child’s interests is a delicate fact driven balance at the core of the rationale for appellate deference. So the judge on a stay application shows considerable deference to the findings of the trial judge. Of course, evidence of relevant events after the trial was not before the trial judge, and may affect the analysis. The child’s need for stability generally means that there should be special and persuasive circumstances to justify a stay that would alter the status quo.
[Emphasis added]
[48] Recognizing the “modified Fulton test”, I turn to consideration of the second and third branches of the test.
[49] As to the second branch of the primary test—whether Mr. Titus will suffer irreparable harm if the stay is not permitted—in Colpitts, supra, Beveridge J.A. wrote:
[48] Irreparable harm is informed by context. This was described by Cromwell J.A., as he then was, in Nova Scotia v. O’Connor, 2001 NSCA 47:
[12] The term “irreparable harm” comes to us from the equity jurisprudence on injunctions. In that context, it referred to harm for which the common law remedy of damages would not be adequate. As Cory and Sopinka, JJ. pointed out in R.J.R.-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 341, the traditional notion of irreparable harm is, because of its origins, closely tied to the remedy of damages.
[13] However, in situations like this one which have no element of financial compensation at stake, the traditional approaches to the definition of irreparable harm are less relevant. As Robert J. Sharpe put it in his text, Injunctions and Specific Performance (Looseleaf edition, updated to November, 2000) at § 2.450, “... irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case.”
[50] Regardless of whether the motion for a stay is granted, the reality is there will be a significant change in the life of J. going forward. The status quo referenced in Reeves, supra is no longer possible. If a stay is not granted, the child will accompany Ms. Kynock in her relocation to Idaho, with all of the adjustments that such a move implies. It will mean a new parenting dynamic for J., who will live with Ms. Kynock in a different country, and as it stands now, will not have face-to-face time with Mr. Titus until July 2022.
[51] If the motion for a stay is granted, then until the appeal is determined the parties will revert to the prior interim order of 2019. However, as Ms. Kynock will have relocated it means J. will reside in the de facto care of Mr. Titus. Up until now J. has spent time with both parents, and has been in Ms. Kynock’s primary care since December 2018.
[52] Should the appeal be is successful, J. may well have to return to Nova Scotia, resulting in a second significant separation, at that point from Ms. Kynock. If the appeal is unsuccessful, then the relocation of J. to Idaho that would otherwise have sooner occurred will then presumably take place, albeit at a later date. Imposing the stay now means only one potential relocation of the child.
[53] Either outcome portends significant changes in J.’s world. In my view, the least disruptive outcome is best for J., being the one which involves the least potential for further upheaval. J.’s best interests are better served by remaining in Nova Scotia pending determination of the appeal, rather than relocating to Idaho with the potential—should the appeal be successful—of having to move back to Nova Scotia at some later date.
[54] I am persuaded irreparable harm to J. would occur if the child transitioned to Idaho while the potential for re-transition to Nova Scotia remains a possibility. To that extent, this case echoes the irreparable harm component described by Farrar J.A. in P.H. v. Nova Scotia (Community Services), 2013 NSCA 21:
[47] In my view, given C.’s current situation, she is in a stable foster home and is doing very well in school, the disruption caused by removing her from Nova Scotia may have devastating consequences. Should a stay be refused and Ms. H.’s appeal is ultimately successful, C. may suffer irreparable harm. One can only envision the scenario where C. would be removed from her present foster home and school, moved to Ontario, and placed in another foster home and school pending adoption. If Ms. H. is successful on her appeal, it would mean that the disruption would revisit itself. She would again be uprooted and transitioned back to Nova Scotia. This potential disruption cannot be said to be in the best interests of the child.
[55] While J. is not residing in foster care, I share the same concerns here in relation to the potential number of relocations that could be visited upon J. if the child was relocated to Idaho pending the outcome of the appeal.
[56] To be clear, I do not mean to suggest that in each case where a stay is sought the possibility of multiple transitions will always meet the irreparable harm test. However, I am satisfied that in the circumstances of this particular case, for this child, there is irreparable harm found in possible multiple transitions, particularly given the evidence of the child’s mental health difficulties and anxiety about air travel.
[57] On the third branch of the primary test, I consider whether the balance of convenience demonstrates the child would suffer greater harm if a stay were not imposed than if it were granted.
[58] In the circumstances of this case, the relocation of the primary parent and the child is set to occur during a period of great uncertainty about international travel during the current pandemic. As of the date of this decision, I take judicial notice the United States will not permit “non-essential” travel by Canadians across the two countries shared border. The Court was not provided with any information about whether Ms. Kynock has engaged with U.S. immigration authorities regarding her relocation with J. or whether that is even necessary as part of the process.
[59] Neither Ms. Kynock or J. are vaccinated against COVID-19. In this jurisdiction, J. is too young to be eligible to receive such a vaccine. While I do not comment on Ms. Kynock’s choice, there is the potential for complications should the outcome of the appeal mean J. must return to this jurisdiction. J. is too young to travel alone, and the pandemic has created uncertainty regarding international travel. I note the rules and requirements regarding entry into a country currently differ from nation to nation and, in this country, from province to province.
[60] As argued by Mr. Titus, there is no way to know whether travel rules that might then be in place will allow J. to easily return to Nova Scotia in July 2022 for the purpose of Mr. Titus’ parenting time. In my view, there is also the more immediate concern of whether J. would be able to smoothly transition back to Nova Scotia should the outcome of the appeal necessitate it.
[61] It is trite to note the world is in a unique period in history. At another time, Mr. Titus’ argument about international travel may not have been as persuasive. However, it is the uncertainty surrounding ease of the child’s movement across international boundaries and the COVID-19 exposure risks associated with doing so that are of concern.
[62] To conclude, I am persuaded J.’s best interests are more properly served by minimizing the potential risks and uncertainty regarding international travel during the pandemic. As discussed earlier, in the event Mr. Titus’ appeal is unsuccessful, then J.’s one transition to Idaho is only postponed by granting the stay motion. If Mr. Titus’ appeal is successful, then the need for J. to have a return transition to Nova Scotia is avoided. It is in J.’s best interests to remain in Nova Scotia until further order of this Court.
[63] For the sake of clarity, relocation does not, in and of itself automatically equate to a risk of harm to a child for the purposes of considering a stay motion. However, I am persuaded in this case that there is a level of both uncertainty and risk regarding travel that is unacceptable for J. to assume, particularly absent any indication in her decision that the judge considered the intricacies of such travel in the current pandemic era. In the absence of a stay there is a strong likelihood the child would be exposed to unnecessary risk.
[64] In view of my conclusions on the first branch of the Fulton test, it is not necessary to consider the secondary branch of the test. I am satisfied the best interests of the child J. necessitate the imposition of a stay of the judge’s order. The appellant has met his burden to establish a stay of the Order would “better serve or cause less harm” to J. (J.H. v. A.C., supra at para. 31).
Disposition
[65] Mr. Titus’ motion for a stay is granted. He argued in favour of each party bearing their own costs, regardless of the outcome of the motion. Therefore, no costs are ordered, despite Mr. Titus being the “successful party” on the motion.
Beaton, J.A.
[1] Despite Appellant’s counsel’s efforts, it was not possible to secure a typed transcript of the oral decision to file with the Notice of Appeal or in relation to the motion.
[2] The Running File consists of chronological file event notations entered in an electronic case diary. Those entries pertaining to court appearances identify the type or nature of the appearance, those present, and any future date scheduled. Each such notation usually includes a summary of the matters discussed and/or any directions provided by the Court. As there are no standardized rules about the descriptions found in a Running File entry, I did not treat the information as having the accuracy of a transcript.
[3] Undoubtedly the travel issue was in play because, as Ms. Kynock testified before me, she began a relationship with her husband, who resides in Idaho, in September 2016 and they married May 18, 2018. Since July 2018 she has visited her husband and his family in Idaho five times.