What is the test for a stay of a custody order?

The principle of great deference in custody-access appeals has now been recognized as applicable in stay applications involving these issues. This is evident in the reasoning of Cromwell J.A. (as he then was) in Grant v. Grant, 2008 NSCA 51 (in chambers). The case involved a mother’s application for an order setting her appeal for hearing and for a stay of certain aspects of the order under appeal. The trial judge first placed the parties’ children in interim joint custody and allowed the mother to live in the former matrimonial home pending further order. Three months later, the trial judge placed the children in the father’s primary care on an interim basis, and granted the father interim possession of the home. The mother was to have generous access to the children. The trial judge was convinced the mother was subjecting the father and his family to ongoing blackmail, threats and harassment, and was concerned that the children were being exposed to confrontations between the parties caused by the mother’s conduct.