COURT OF APPEAL FOR ONTARIO

DATE: 20000117

DOCKET: M25142

(C392927)

RE: DAVID HARRIS and 32507 ONTARIO LTD. (Appellants)

and JUDITH HARRIS (Respondent)

BEFORE: FELDMAN J.A. (IN CHAMBERS)

COUNSEL: Roger Button, for the appellant/applicant

Jane Murray, for the respondent/respondent

HEARD: January 14, 2000

E N D O R S E M E N T

[1] The husband seeks a stay of the order of Lalonde J. pending appeal. The appeal has been perfected and will be heard within the next few months in the normal course. It may also be expedited, if appropriate, upon application. [2] The matter arises from a separation agreement signed in 1990 containing a non variation of support clause and an agreed equalization payment to be made to the wife over time. [3] The husband unilaterally reduced the support he was paying for the agreed $5,000 per month to $2,000 per month in January 1998, and brought a variation application in the General Division, now the Superior Court, in January 1999. In the meantime, the wife sought to enforce the separation agreement in the Provincial Court and agreed to adjourn that matter until the hearing of the variation application on terms that the husband pay $2,000 per month until the decision of the enforcement application, or until the General Division varied the support. [4] Lalonde J. rejected the husband’s variation application and ordered the support to stay at $5,000 per month, fixed the arrears and ordered the company to assign a second mortgage on a cottage property to the wife. The husband’s current wife is the mortgagor. [5] The case of Circuit World v. Lesperance (1997), 1997 1385 (ON CA), 33 O.R. (3d) 674 O.C.A. sets out the test for imposing a stay pending appeal at pp. 676-7, including a serious question to be tried, irreparable harm to the applicant/appellant and balance of convenience. [6] In my view, this is not a case for a stay. The main point of irreparable harm relied on by counsel for the husband was that the wife may sell the property under Power of Sale prior to the hearing of the appeal if there is default under the second mortgage. However, the payment of $25,000 due on April 1st is to be made in any event to the company and used by the husband to pay the equalization payment to the wife. There is no suggestion that there will be default by Mrs. Sharon Harris in making that payment, therefore, there is no stated risk of default. [7] With respect to the amount of support, the husband has continued to pay $2,000 per month rather than $5,000, in effect creating his own stay, on the basis that the Provincial Court order anticipates that he will do so pending the outcome of an appeal of the General Division order declining to vary the support. [8] In my view, there is no basis to interpret the Provincial Court order in that way. The order of the Superior Court is not stayed by the rules and the appellant should be complying with that order unless this court orders a stay on the husband’s application. This conduct of the husband is consistent with the finding of Lalonde J. in his reasons and militates against granting him equitable relief. The balance of convenience favours the respondent. I have concerns about the merits of the appeal as they have been reviewed in court today but, as set out in Lesperance, I put less emphasis on that part of the test than on the others already referred to. [9] I therefore decline to order a stay of the order of Lalonde J. The respondent asks for security for costs of the appeal in the amount of $10,000 including solicitor-and-client costs of the appeal and of this motion. I am not prepared to order security. It is not clear that the husband’s property would not be sufficient to cover a further $10,000 if necessary. The appeal should be heard shortly if it goes ahead. The husband will have to comply with the order of Lalonde J. in the interim as well as pay to the respondent her costs of this motion fixed at $2,000.00.