Ontario’s Court of Appeal adopted a new, definitive approach when an appellant who has outstanding spousal support obligations may attempt to appeal such an order.
Epstein’s This Week in Family Law
By: Philip Epstein
A. (A.) v. G. (Z.), 2016 CarswellOnt 14143 (Ont. C.A.)
Attempting to Appeal While in Default of a Spousal Support Order
A. (A.) v. G. (Z.), 2016 CarswellOnt 14143 (Ont. C.A.): - Feldman, Simmons and Lauwers JJ.A. On the hearing of this appeal before the Ontario Court of Appeal, the respondent wife brought a preliminary motion asking the Court not to hear the husband’s appeal while he has not complied with the orders of the trial judge respecting payment of spousal support and posting security for future spousal support payments.
The Ontario Court of Appeal noted that Rule 63.01(1) of the Rules of Civil Procedure, make it clear that such orders related to support are not automatically stayed by an appeal. The husband did not move for a stay of all or part of the support orders which led the Court of Appeal to review its previous cases of Brophy v. Brophy, 45 R.F.L. (5th) 56 (Ont. C.A.); Dickie v. Dickie, 39 R.F.L. (6th) 1 (Ont. C.A.), and finally Murphy v. Murphy, 56 R.F.L. (7th) 257 (Ont. C.A.).
In the recent case of Murphy, the Court refused to hear the submissions of the responding party who was in default. However, in Brophy, the Court considered various alternatives when faced with a default. One alternative was to dismiss the appeal and another was to adjourn the appeal pending compliance with the trial order. Another alternative is, of course, to proceed with the appeal notwithstanding the non-compliance. In Brophy, the Court determined that it did not matter whether one dismissed the appeal or adjourned it because there was no merit to the appeal.
The Court is sending a definitive message, in this case, that it is no longer the best practice to proceed in that way. The Court of Appeal has made it clear that they have decided on a new approach. They state:
In our view, where an appellant wishes to be relieved of his or her trial ordered obligations pending appeal, the proper approach is to bring a stay motion where the circumstances can be brought before the court. If that is not done, then although the court may still hear the appeal in circumstances the court feels require that approach, the court will normally not hear the appeal until the trial order has been complied with.
This sends a very clear message to counsel and parties, at least in Ontario, that the Court of Appeal is not likely going to hear the appeal when a support order is in default.
The Court declined to hear this appeal and adjourned it on condition that the appellant pays the arrears of spousal support in the amount of almost $300,000, posts a letter of credit for future spousal support in the amount of $585,000 and puts in place a life insurance policy payable to the wife for that amount. The Court does not consider whether the husband has the means to comply with such an order. Clearly, the trial judge thought that he could.
The Court of Appeal is not the place to argue why the husband could not meet the order of the trial judge. That would have been best dealt with on a stay motion, where the husband could have thoroughly canvassed, in his affidavit material, why he could not make the payments pending the appeal.
This is a stern lesson to support payors in Ontario.