Court of Appeal for Ontario

Date: 2018-12-04 Docket: M49835 (C66001) Motions Judge: Lauwers J.A.

Between

Nhung (Leo) Nguyen Applicant (Respondent)

and

Linh Tran Respondent (Appellant)

Counsel

Ben Mignardi, for the appellant

Frances M. Wood, for the respondent

Heard: November 27, 2018

Reasons for Decision

[1] The appellant appeals the final order of Baltman J., dated July 12, 2018. The order requires the appellant to transfer her interest in the matrimonial home to the respondent and to vacate the matrimonial home, where she has lived separate but apart since the separation, together with the couple's two children. The youngest child will be 18 in April 2019.

[2] Under a combination of r. 63.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and r. 38(33) of the Family Law Rules, O. Reg. 114/99, the filing of a notice of appeal stays any provision requiring the payment of money except a provision that enforces a support order. Accordingly, the appellant seeks to stay the provisions regarding the disposition of the matrimonial home pending the appeal, since the automatic stay does not apply to it.

[3] In order to obtain a stay, the applicant must establish the three factors imposed by RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. Without going into the details of the appeal, in my view, the appellant has put forward plausible grounds for the appeal.

[4] There is a dispute about the second ground, irreparable harm. The respondent argues that regardless of the outcome of the appeal, the appellant is not going to get the matrimonial home or any ability to continue to reside in it, even if she is completely successful on the appeal. Therefore, she will have to move; so, requiring her to move sooner rather than later does not amount to any form of irreparable harm.

[5] I disagree. This is a matrimonial case, in which there is a status quo. Although the children are no longer young, the status quo permits the continuation of existing relationships. It would not be appropriate for me to speculate on the outcome of the appeal or the outcome of any renewed negotiation process that follows an appeal, assuming the appellant is successful. The dynamics cannot be entirely predicted.

[6] The balance of convenience, the third factor in the test, clearly favours the appellant because the living arrangements are now stable and would not be if provisions of the final order regarding the matrimonial home were implemented.

[7] In these circumstances, I grant the stay relating to the disposition of the matrimonial home, residency in the home, and the division of household contents.

[8] I remind the appellant that filing a notice of appeal does not relieve her of the obligation to pay child support in accordance with the final order.

[9] The costs of this motion are reserved to the panel.

P. Lauwers J.A.