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Avoid These Excluded Property Mistakes

Vancouver appellate lawyer Lorne N. MacLean, QC handles complex Vancouver family appeal cases including appeals on financial and child parenting issues to both of the BC Court of Appeal and the Supreme Court of Canada. Mr. MacLean represented Ms. Young in her successful Vancouver family appeal to the Supreme Court of Canada in the leading custody case of Young V. Young and for Mr. Leskun in the high profile Vancouver family appeal SCC spousal support review case. Mr. MacLean also recently succeeded in opposing a Vancouver family appeal leave to the Supreme Court of Canada application in Lightle v. Kotar  from a decision where Mr MacLean obtained a nearly three fold increase in monthly spousal support for his client. Other successes in the BC Court of Appeal include setting new law on amortization and support in a family business case and establishing that the biological parent has the primary role in child support cases involving a step parent.

The BC Court of Appeal just granted Mr. MacLean a rare stay of proceedings in the Vancouver Family appeal case of Solis v. Tibbo-Lenoski  preventing the immediate return of children to Mexico based on Mr. MacLean’s recent arguments on Mr Tibbo-Lenoski’s behalf in a Hague Convention wrongful retention case.

The official summary of the successful result of Mr. MacLean’s Vancouver family appeal stay application states:

The appellant father applies for a stay of proceedings on a judgment of this Court pending his application for leave to appeal to the Supreme Court of Canada. The appeal concerns the interpretation of Article 13(b) of the Hague Convention. The father had removed his twin boys from their habitual residence with their mother in Mexico. One of the boys, D, has autism and is undergoing intensive autism treatment in Vancouver. The father claimed that the unavailability of appropriate autism therapy in Mexico engaged the grave risk of harm exception in Article 13(b). The chambers judge ordered the boys to be returned to Mexico and this Court upheld that decision. Held: application allowed. With respect to the merits of the appeal, there is a sufficient likelihood that the Supreme Court of Canada might grant leave to appeal. As for irreparable harm, the findings of fact of the chambers judge suggest that D may suffer serious harm if he is returned to Mexico and any such harm would likely be irreparable given the time sensitive nature of his treatment. Finally, the balance of inconvenience favours granting a stay.

Here are the key extracts of the rare  Canadian stay application success:

[10]        Before turning to the merits test I acknowledge as a starting point that, insofar as it is appropriate to express the proposition in this way as the case involves a child, a successful party is entitled to the fruits of his or her judgment. This, I agree, is a pressing and substantial consideration in the context of an international regime designed to ensure the prompt return of children who have been removed from the jurisdiction in which they are habitually resident, to reduce the incentive to engage in child abduction, and to ensure that a determination of a child’s best interests and custody issues associated with that question are dealt with in the jurisdiction of a child’s habitual residence and not in the context of a Hague Convention application.

[11]        Secondly, nothing I say on the merits test for the purpose of deciding whether a stay should be granted reflects in any way on the correctness of this Court’s decision.

[12]        I am persuaded, however, that this is a case that satisfies the applicable merits test. Here the uncontested finding is that withdrawal of the autism treatment will result in serious harm to D. This Court was bound by Thompson and did not consider that the other cases relied on by the appellant expanded on an interpretation of Article 13(b) as requiring real, immediate, and grave harm.

[13]        In my view, there is a reasonable possibility that the Supreme Court of Canada might grant leave in this case. The scope and meaning of what constitutes a grave risk of psychological harm or an otherwise intolerable situation has not been considered by that Court in 20 years and has not been considered at all in the context of a serious disability such as autism where critical treatments are available in some jurisdictions but not others. It may be that the Court would find that the Australian High Court decision and the U.S. 2nd Circuit decisions relied on by the appellant in this Court signal a somewhat less restrictive interpretation of Article 13(b) in this context or, alternatively, that on a proper interpretation of the Article even in light of what was said in Thompson, the risk of harm here should properly be characterised on the facts as a risk of grave harm or as a return to an intolerable situation. Even though this is not a case where there is conflicting provincial appellate authority, I think there is sufficient prospect that the Supreme Court of Canada would decide that this case meets the test to grant leave, that the threshold merits test for the purpose of a stay is met.

[14]        In saying that, I acknowledge the argument advanced by Ms. Solis that Thompson may be regarded as having laid down settled and clear principles (indeed I have adopted that view in a judgment of my own written for this Court in a Hague Convention case). It may also take the view, and I acknowledge the argument advanced by Ms. Solis, that the question of harm is one of fact, and that one can reasonably adopt a perspective on this case that it is really is an attempt to litigate the best interests of a child in the wrong forum under the guise of an exception to the Convention. Nonetheless, I cannot but conclude that there is sufficient merit to the application that Mr. Lenoski satisfies the threshold merits test.

[15]        I am also persuaded that the irreparable harm test has been met. I reject the argument that I should consider only the interests of the parties. In my opinion, I should focus principally on harm to the child, if a stay is not granted. The critical question, in my view, is whether the child would suffer irreparable harm if the appeal is ultimately successful and a stay has not been granted. On the facts, in the absence of a stay, D would return to Mexico and would be deprived of the treatment at least until the appeal is decided. It seems incontrovertible on the findings of fact made by the court below that the treatment is not only critical and beneficial to D, and its potential benefit is time sensitive. Depriving D of the treatment at his age and for the duration necessarily involved in an appeal if leave is granted would seriously harm D in a way that would not likely be reparable.

[16]        Finally, I turn to the balance of convenience. I accept that Ms. Solis has been D’s primary caregiver and provides a loving environment for him and his twin brother. I also proceed on the assumption that if the stay is granted the mother may find herself compelled to return to Mexico without her children. She may choose to stay in Canada, but for the purpose of this analysis, I will assume that she will not. I will also accept, again for the purpose of this analysis, what I know to be disputed as a matter of fact; namely, that the father has not contributed properly to her while she has lived here. Finally, I do think that it is appropriate to weigh in the balance that delays in the rightful return of children compromises or can potentially compromise the objects of the Convention and that here there is a forum in Mexico in which the father might be able to advance the interests of the twins in dealing with custody issues.

[17]        Balancing those considerations against the harm that D would probably suffer if deprived of the autism treatment I have concluded that the balance of convenience favours granting a stay. Mr. Lenoski has offered undertakings to contribute financially to Ms. Solis’ expenses if she chooses to stay in Canada. I am not making those undertakings a condition of the stay because I do not know what the mother will decide to do in the face of what is indubitably a very hard choice for her. If she does stay, however, then I expect Mr. Lenoski to live up to his word in every last particular.

[18]        This case is one in which the interests of the parties and most particularly D and his twin brother require that the issues be dealt with expeditiously. Under the Supreme Court Act Mr. Lenoski has 60 days to file his application for leave to appeal. Given the evident extent of the preparation of the issues in this appeal, I see no reason why the leave application cannot be filed well within the 60 days. I am making an order staying execution of the effect of the order of this Court for 45 days provided that if the leave application is filed on or before 45 days of the pronouncement of this Court’s order, the stay of proceedings for execution will be extended until such time as the Supreme Court renders its decision on the leave application. Thereafter, whether the stay is extended would fall to be decided by the operation of s. 65 of the Supreme Court Act or by a further order of that Court. I refer to s. 65 of the Supreme Court Act because on my reading of it, if leave were granted by the Supreme Court of Canada then the proceedings in this Court would be automatically stayed by operation of the statute. Failing that being the case, any further stay would be for the Supreme Court of Canada.

[19]        There will be no order for costs.

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