Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 20240115 Docket: M54769 & M54781 (COA-24-CV-0003)

Before: Miller J.A. (Motions Judge)

Between:

Dalila Jarvis Applicant (Appellant/Moving Party/ Responding Party by way of cross-motion)

And:

Stephen Jarvis Respondent (Respondent/Responding Party/ Moving Party by way of cross-motion)

Counsel: Dalila Jarvis, acting in person Shelley C. Quinn and Emily Kostandoff, for the respondent/responding party/moving party by way of cross-motion

Heard: January 12, 2024

Endorsement

[1] The parties are spouses who have been separated since 2017. Post‑separation, the moving party, Ms. Jarvis, has lived with the two children of the marriage in the matrimonial home. The responding party, Mr. Jarvis, is the owner of the matrimonial home, and has been renting accommodation nearby. In addition to his rent, the responding party has been paying spousal and child support, as well as the two mortgages on the matrimonial home. His evidence is that he has accumulated a crushing debt load, is in arrears on property taxes and rent, and has maxed out his credit.

[2] The moving party does not accept that the responding party has any of the debts that he claims, with the exception of one mortgage against the matrimonial home. She argues that if he is in debt, it is not due to the fact that the combined cost of the support orders and carrying costs of the matrimonial home consume substantially all of his net income, but because he maintains a profligate lifestyle.

[3] The responding party has been intermittently pressing the issue of selling the matrimonial home ever since separation. The moving party has refused to consent to the sale. On his evidence, he has exhausted all sources of credit and is no longer able to meet his financial obligations. He needs to sell the matrimonial home so that both parties can have access to the remaining equity.

[4] By way of order dated December 21, 2023, Akazaki J. granted the responding party exclusive possession of the matrimonial home, commencing January 15, 2024, in order to prepare it for sale, and authorized the responding party to sell the matrimonial home without the consent of the moving party, pursuant to s. 23(b)(iii) of the Family Law Act, R.S.O. 1990, c F.3.

[5] The moving party sought a stay of that order pending appeal.

[6] Mr. Jarvis brought a cross-motion, seeking a dismissal of Ms. Jarvis’s motion, and in the alternative, seeking the imposition of terms should a stay be ordered.

[7] For the reasons set out below, Ms. Jarvis’s motion is dismissed. It is therefore unnecessary to consider Mr. Jarvis’s motion.

Analysis

[8] The test governing motions for a stay under r. 63.02 of the Rules of Civil Procedure is adapted from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, at para. 48. It requires a reviewing court to make three inquiries:

1. A preliminary assessment of the merits of the appeal, to determine whether the appeal raises a serious question;
2. A determination of whether the appellant would suffer irreparable harm if the order were refused;
3. A determination of which of the parties would suffer greater harm from granting or refusing the stay pending a decision on the merits of the appeal.

[9] The burden is on the moving party to establish that the stay pending appeal should be granted. The three inquiries are intended to put the court in a position to make the ultimate determination of whether the interests of justice require a stay: Zafar v. Saiyid, 2017 ONCA 919, para. 18.

A serious question

[10] The moving party raises many grounds of appeal. The grounds reduce, essentially, to the claim that the motion judge did not consider all relevant factors in coming to his decision and as a result unnecessarily prejudiced the best interests of the children of the marriage. The grounds are weak, but they are not frivolous or vexatious, and the motion cannot be disposed of on this ground alone. [^1]

The moving party will suffer irreparable harm if the stay is not granted

[11] Irreparable harm is a matter of the nature of the harm, rather than its magnitude. In this case it involves the impact on both the moving party and the children of the marriage. The harm identified by the moving party is that in the immediate term she will be unable to secure rental accommodation in the immediate neighbourhood suitable for her and the two children, because: i) she has no funds with which to pay a deposit of first and last month’s rent; ii) she has no references to give in a rental application; and iii) she has no job and therefore no income with which to pay on-going rent. She is concerned that if she is required to leave the immediate neighbourhood, it will result in a deprivation to the children of all the supports on which they have relied post-separation.

[12] The harm faced is not irreparable. The only evidence before the court is that rental properties are available in the neighbourhood that would satisfy the needs of the children both to adequate housing and to enable them to maintain the benefit of friendships, schools, and extracurricular activities. The responding party lives in the same neighbourhood and it is not in his interests to have them relocate. As explained further below, it is not inevitable that the moving party cannot find alternative accommodation. Furthermore, the loss of the matrimonial home in the near term is inevitable.

The balance of convenience

[13] The stay undeniably casts a burden on the moving party. In all likelihood, the matrimonial home will be sold prior to either the appeal or the trial and she will have to find an alternative accommodation. Nevertheless, the situation is not as burdensome as she has made it out to be.

[14] First, the order provides that the children can remain in the house with the responding party while the responding party readies it for sale. Second, the order provides that the January 15 date can be delayed, at the responding party’s discretion, if the moving party agrees to temporarily vacate the property to allow the moving party access to the property to ready it for sale, including painting, repairs, and staging. This latter provision, in particular, would provide the moving party with additional time to arrange her affairs.

[15] The burden on the responding party has already been canvassed. He is, on his evidence, on the brink of insolvency. If he does not sell the matrimonial home, he will not only lose his housing, but risks a sale of the matrimonial home by the mortgagee. This would be detrimental to the financial interests of both parties.

[16] I conclude that in all of the circumstances, a stay of the order is not warranted. Accordingly, it is unnecessary to consider the alternative submission in the cross-motion.

Disposition

[17] The motion is dismissed. The responding party is entitled to costs of the motion on a partial indemnity basis in the amount of $5,000 payable forthwith.

“B.W. Miller J.A.”

[^1]: The motion judge, in obiter, engaged in an extended meditation on the use of the Partition Act, R.S.O. 1990, c P.4, to interpret s. 23 of the Family Law Act. This issue was not raised by the parties and was extraneous to the decision the motion judge had to make. Neither was it addressed in the motion before me. Nothing in my reasons should be read as indicating agreement with the motion judge’s obiter dicta.