“There is no dispute with respect to the legal test applicable on this motion. In appeals involving custody and access matters, the three-part test for a motion to stay pending appeal is formulated as follows: see generally, D.C. v T.B., 2021 ONCA 562 (”D.C. v. T.B.”), at paras 9-10:
i. whether, on a preliminary assessment, the appeal raises a serious question to be tried;
ii. whether the child will suffer irreparable harm if a stay is refused; and
iii. the balance of convenience, namely, whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal.
The overriding consideration in parenting cases is the best interests of the child. The court must be satisfied that it is in the child’s best interests to grant a stay: D.C. v. T.B.; K.K. v. M.M., 2021 ONCA 407, at para 17. Moreover, the onus is on the moving party to demonstrate that the stay of the original order pending appeal should be granted.
The standard for appellate review of a custody or parenting decision is exacting. The function of the reviewing court is not to retry the case on appeal. Intervention is warranted only if there is a material error, a serious apprehension of the evidence, or an error of law. It should also be noted that although all three parts of the test for a stay must be satisfied, the three criteria are not watertight compartments and the strength of one may compensate for the weakness of another: Mudry v. Danisch, 2014 ONSC 435 (Div. Crt), at para. 166.”