R. A Stay of Proceedings for Non-Compliance with a Subsisting Order or Other Clause

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 558-558

Page 558

See note ¹⁵⁷

Trial or appellate proceedings may be stayed pending the purging of contempt arising from non-compliance with a pre-existing order.¹⁵⁸Thus, an appellate court may decline to entertain an appeal respecting access privileges until the appellant has paid outstanding arrears of support or satisfied the appellate court of an inability to pay the arrears.¹⁵⁹Where an objection is lodged to an application being heard until the applicant purges her contempt, the allegation of contempt must be strictly proved.¹⁶⁰

When a person disregards a court order, that person is liable to be (1) found in contempt, (2) punished by committal or attachment, and (3) refused a hearing on any application until the contempt has been purged. However, a finding of contempt or a finding of disobedience does not take away a judge’s discretion to allow the disobedient party to be heard on an application. The discretion persists despite the contempt or disobedience and its exercise depends upon a consideration of such matters as whether: (1) the contempt or disobedience is contumacious; (2) a refusal by the court to hear the party would do violence to the interests of the children; and (3) the contempt or disobedience, so long as it continues, impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or to enforce the orders that it may make. Whether the court has discretion to hear a party despite that party’s deliberate disobedience of a court order for costs involves a consideration of the same principles that are applicable to the question of where the disobedience relates to support arrears.¹⁶¹Failure to pay the costs fixed by a consent judgment dealing with divorce and matrimonial property division does not warrant a stay of proceedings to determine unresolved issues relating to custody, access, and child support.¹⁶²Nonpayment of the costs of previous proceedings constitutes no basis for a stay of subsequent proceedings where the failure to pay costs is due to inability to pay. The court should be slow to make an order for security of costs where the effect of such an order would be to bar the non-paying party from seeking variation of a previous order for corollary relief. Especially where a child is concerned, financial considerations should not be made paramount over the best interests of the child.¹⁶³

[157] See Julien D. Payne, Payne on Divorce, 4th ed. (Scarborough, ON: Carswell, 1996) c...