I. Stay of Order Pending Appeal

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 580-580

580 CHILD SU PPORT GUIDELINES IN CA NADA, 2012

its judgment shall take ef‌fect only from the date of the decision, but such an exceptional

course of action can only be justi f‌ied where there are circumstances that render it unjust to

do otherwi se.48

I. STAY OF ORDER PENDING APPEAL

Orders for child support should not be stayed pending appeal unless t he respondent would

be unduly prejudiced and suf‌fer irreparable harm i f a stay were not granted.49

A fairly heavy burden falls on the applicant who seeks to prevent the other party from

immediately realizi ng his or her entitlement under the order. A three-stage test will be ap-

plied. First, a prelimina ry 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. ird, 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.50 If 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 ap-

propriate to the circumstances of the appeal .

Under section 18 of the British Columbia Family Relations Act, jurisdiction to enterta in

an application to stay execution of a support order pending determination of an appeal

vests in a single justice, who must undertake a preliminar y assessment of the merits of the

case, but a f‌inal determination of whether the appeal should be granted or dismissed can

only be made by the panel of justices who hear the appeal.51

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. e principles underlying Rule 15 are to prevent injustice, avoid delay in

resolving child support obligations, and to ensure that the result is fair a nd 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 pay-

ment by monthly ins talments.52

48 Preweda v. Preweda (1993), 48 R.F.L. (3d) 190 (Man. C.A.); see a lso Metzner v. Metzner, [2000] B.C.J. No.

104 (C.A.); King v. King (1994), 115 Nf‌ld. & P.E.I.R. 56 (Nf‌ld. C .A.).

49 Armstrong v. Armstrong (1992), 40 R.F.L. (3d) 438 (Ont. C.A.); Zenner v. Zenner (1991), 32 R.F.L. (3d) 11

(P.E.I.C.A.); see als o Ciachurski v. Ciachurski (1994), 47 B.C.A.C. 208; Brooks-Gu altieri v. Gualtieri, [1998]

O.J. No. 5591 (Gen. Div.) (arrears of child support; st ay refused). Compare Hoar v. Hoar (1992), 39 R.F.L.

(3d) 125 (Ont. C.A.) (application under Family Law Act , R.S.O. 1990, c. F.3).

50 Baker v. Baker, [1998] B.C.J. No. 1822 (C.A.); Armstrong v. Armstrong, [1998] B.C.J. No. 2309 (C.A.); Hen-

drickson v. Hendrickson, [2004] N.S.J. No. 304 (C.A.); Myatt v. Myatt, [2004] N.S.J. No. 385 (C.A.); Taub er

v. Tau ber, [1999] O.J. No. 713 (C.A.) (appropriate amount of child suppor t pending appeal f‌ixed at $11,000;

dif‌ferential b etween this amount a nd higher amount ordered by tria l court to be deposited in intere st

bearing tr ust account).

51 Armstrong v. Armstrong, ibid.

52 Primeau v. Primeau, [2004] S.J. No. 655 (C.A .).