Case: T.F.R. v. Y.T., 2025 BCCA 349 (CanLII)
Keywords: China; travel; jurisdiction; stay
Synopsis:
The parties are the separated parents of a 4-year-old child. On August 21, 2025, an order is made (per Silverman P.C.J.) permitting the respondent to travel to China with the child from September 22 to October 17. (See para. 1).
The appellant appeals the order to the B.C.S.C.; LeBlanc J. dismisses the appeal with one minor variation to its terms. (See para. 2). As noted by the Court of Appeal, the respondent’s plan is to “depart, with the child, in the early morning hours on September 30”. (See para. 2).
On September 26, the father’s counsel informed the mother’s counsel that he had instructions to appeal LeBlanc J.’s order and seek a stay – the application in the Court of Appeal chambers is to be made Monday, September 29 (i.e., the day before the respondent and the child leave for China); “Over the weekend, the mother changed her travel plans and left for China with the child”. (See para. 3).
The appellant “persisted” with the September 29 application before Gomery J.A., requesting an order staying both of the underlying orders and seeking a further order requiring the respondent and child to return to Canada within 5 days. (See para. 4). Gomery J.A. dismisses the application, finding it “doubtful” the Court of Appeal has jurisdiction to stay the underlying parenting orders and that “no good purpose would be served by requiring her to return from China five days after her departure”. (See para. 5).
Importance:
For Gomery J.A., staying LeBlanc J.’s order “would accomplish nothing, because all that order did was to dismiss an appeal”. Therefore, the focus of the Court’s analysis was on the Provincial Court order that gave the respondent permission to travel. (See para. 15).
Because that order was made pursuant to the B.C. Family Law Act, Gomery J.A. was mindful of s. 234, which limits an appellate court’s jurisdiction to stay: “[d]espite any other enactment, if an order made under this Act is appealed, the order remains in effect until the determination of the appeal unless the court that made it orders otherwise.” (See para. 16).
In light of this language, the question is whether the Court of Appeal retains “a sliver of jurisdiction” in exceptional circumstances. Gomery J.A. considered several decisions of the Court of Appeal at paras. 17-19, which appear to converge on the following conclusion:
“…if this Court ever has jurisdiction to stay an order made by a lower court under the FLA, it may only exercise its jurisdiction where:
a) A stay has been sought and refused by the court that made the order; and
b) It is plain that the judge committed an obvious or egregious error in refusing the stay.” (See para. 19).
In this case, Gomery J.A. determined there was no such “obvious or egregious error” and that the Court was without jurisdiction to stay the Provincial Court order. (See para. 22).
Of further interest, Gomery J.A. addressed the adequacy of the appellant’s stay materials, finding that with respect to his application with respect to LeBlanc J.’s order: “[t]he absence of any indication of the reasons given by the judge who made the order under appeal is a fatal defect to any application to stay that order, because it makes it impossible for a Justice of this Court to assess the merits of the underlying appeal.” (See para. 24).
In circumstances where a decision is rendered orally and a stay must be sought “at once or not at all”, Gomery J.A. indicates that the Court of Appeal will consider “counsel’s note of the oral reasons given by the judge for the purpose of hearing the application” and that, “best practice is for both counsel to attempt to agree on a note of what was said by the judge”. (See para. 25).
Finally, Gomery J.A. found that the balance of convenience favoured the respondent because “[r]efusing a stay would allow mother and child to spend time with her relatives as the judge found is in the child’s best interests”, granting the stay would “impose great inconvenience…for no good purpose” and, if the respondent did not intend to return as required by Silverman P.C.J.’s order, “a further order from this Court is hardly likely to change her disposition.” (See paras. 28-29).
Counsel for the Appellant: Anwar Mujtabah (Crease Harman LLP, Victoria)
Counsel for the Respondent: Ronke Olorunojowon (Astute Legal, Victoria)