Gardner v. Gardner, 2009 ABCA 54

• Judge: Watson, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 11, 2009
• Citations: 2009 ABCA 54;(2009), 454 A.R. 82 (CA)

Gardner v. Gardner (2009), 454 A.R. 82 (CA);

      455 W.A.C. 82

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. FE.085

Patricia Gail Gardner (respondent/respondent/plaintiff) v. Gary Gardner (applicant/appellant/defendant)

(0803-0323-AC; 2009 ABCA 54)

Indexed As: Gardner v. Gardner

Alberta Court of Appeal

Watson, J.A.

February 18, 2009.

Summary:

The parties cohabited for a period of time, then married in 1992, separated in 2003 and divorced in 2007. The wife did not work outside the home during the marriage. During the marriage, the husband started a company of which he became president, CEO and one of four directors. At issue was the value and division of the matrimonial property; entitlement to, amount and duration of spousal support; and the amount of child support.

The Alberta Court of Queen's Bench, in a decision reported at (2008), 444 A.R. 271, determined the issues accordingly. The parties made submissions regarding costs.

The Alberta Court of Queen's Bench, in a decision reported at (2008), 444 A.R. 288, awarded the wife lump sum costs of $80,000, inclusive of disbursements and GST. The husband appealed and applied under rule 508(1) for a stay of the judgments pending appeal.

The Alberta Court of Queen's Bench, in a decision reported at [2009] A.R. Uned. 169, dismissed the application for a stay. The husband applied under rules 508(3) and 516 for a stay of the judgments pending appeal.

The Alberta Court of Appeal, per Watson, J.A., dismissed the application.

Family Law - Topic 969

Husband and wife - Actions between husband and wife - Practice - Stay of orders pending appeal - Pending his appeal, the husband sought a stay of enforcement of a matrimonial property equalization payment award, a costs award and interest on the property award - A substantial portion of the property equalization payment was a cash payment of $390,000 in lieu of transferring shares in the husband's company - The payment was to be made in equal installments over 36 months from the judgment date - The husband asserted that due to the economic downturn his net monthly income had dropped considerably and, while he was able to make spousal and child support payments, he was not able to make the equalization payments - Further, he questioned his ability to recover overpayment from the wife if he was successful on his appeal - The wife conceded that the husband's appeal was arguable, but otherwise opposed the application - The Alberta Court of Appeal, per Watson, J.A., dismissed the application - As enforcement measures related only to the accumulating arrears, rather than the entire judgment, it was premature and conjectural to say that there was a risk of significant overpayment - Further, the wife was not judgment proof - More significant was the husband's argument regarding present inability to pay - The husband should be able to shift his affairs so that he could keep up with the payments - A stay would shift much of the risk of the husband's future financial problems onto the wife - Further, the court noted that after the wife's lis pendens was lifted on the husband's home, he had reencumbered it without setting any of the funds acquired aside to meet the equalization payments - Finally, a stay would remove any motivation for the husband to come to terms about some alternative approach to the matter - A stay was not justified under either irreparable harm or the balance of convenience.

Family Law - Topic 4208

Divorce - Practice - Enforcement of judgments and orders - Stay of - [See Family Law - Topic 969 ].

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See Family Law - Topic 969 ].

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See Family Law - Topic 969 ].

Cases Noticed:

Beaver First Nation Band v. A.T.N. Farms Ltd. et al., [2004] A.R. Uned. 29; 2004 ABCA 79, refd to. [para. 2].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, appld. [para. 10].

Maverick Equities Inc. v. Owners- Condominium Plan No. 942 2336, [2008] A.R. Uned. 79; 2008 ABCA 190, refd to. [para. 10].

Alberta Permit Pro et al. v. Booth et al., [2008] A.R. Uned. 363; 2008 ABCA 414, refd to. [para. 10].

Morrow v. Zhang et al. (2008), 432 A.R. 371; 424 W.A.C. 371; 2008 ABCA 248, refd to. [para. 10].

Vysek v. Nova Gas International Ltd. et al. (2001), 293 A.R. 346; 257 W.A.C. 346; 2001 ABCA 300, refd to. [para. 12].

Bodner et al. v. Alberta et al. (2003), 327 A.R. 77; 296 W.A.C. 77; 2003 ABCA 102, refd to. [para. 15].

Counsel:

R.M. Curtis, Q.C., and A.L. Adamic, for the respondent;

D.N. Skovberg, for the applicant.

This application was heard on February 11, 2009, by Watson, J.A., of the Alberta Court of Appeal, who delivered the following reasons for decision on February 18, 2009.