I. Stay of Order Pending Appeal

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 595-596

Page 595

Orders for child support should not be stayed pending appeal unless the respondent would be unduly prejudiced and suffer irreparable harm if a stay were not granted.⁴⁸

Page 596

A fairly heavy burden falls on the applicant who seeks to prevent the other party from immediately realizing his or her entitlement under the order. A three-stage test will be applied. First, a preliminary assessment must be made of the merits of the case to ensure that there is an arguable issue raised on the appeal. Second, it must be determined whether the applicant would suffer irreparable harm if a stay is refused. Third, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of a stay pending the outcome of the appeal.⁴⁹If the applicant fails to meet these criteria, she must satisfy the court that there are exceptional circumstances that would make it fit and just that the stay be granted. A partial stay of the child support order may be deemed appropriate to the circumstances of the appeal.

A stay of execution of a child maintenance order is not automatic but such a stay may be granted in the exercise of judicial discretion under Rule 15 of the Saskatchewan Court of Appeal Rules. The principles underlying Rule 15 are to prevent injustice, avoid delay in resolving child support obligations, and to ensure that the result is fair and equitable. Rule 15 applies to an order for the instalment payment of child maintenance arrears, even if the children are no longer dependent. A father’s application for a stay should be denied where the appeal is likely to proceed in timely fashion and even total success on appeal, which is somewhat unlikely, would not result in any great loss, given that the order provides for payment by monthly instalments.⁵⁰

[48] Armstrong v Armstrong (1992), 40 RFL (3d) 438 (Ont CA); Zenner v Zenner (1991), 32 RFL (3d) 11 (PEICA); see also Ciachurski v Ciachurski (1994), 47 BCAC 208; Brooks-Gualtieri v Gualtieri, [1998] OJ No 5591 (Gen...