COURT OF APPEAL FOR ONTARIO

CITATION: A.A. v. Z.G., 2016 ONCA 660

DATE: 20160907

DOCKET: M46831 (C60864)

Feldman, Simmons and Lauwers JJ.A.

BETWEEN

A.A.

Applicant (Appellant)

and

Z.G.

Respondent (Respondent)

AND BETWEEN

S.A.

Plaintiff (Appellant)

and

A.A. and Z.G.

Defendants (Respondents)

Harold Niman and Deborah MacKenzie, for the moving party Z.G.

William Friedman, Judy Hamilton and Mark A. Russell, for the responding party A.A.

Heard: August 24, 2016

ENDORSEMENT

[1] The respondent Z.G. brought a preliminary motion before the court asking the court not to hear the appellant A.A.’s appeal while he has not complied with the orders of the trial judge respecting the payment of spousal support and posting security for future spousal support payments. As per rule 63.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, such orders are not automatically stayed by an appeal. Nor did A.A. move for a stay of all or a part of the orders pending appeal, pursuant to rule 63.02(1).

[2] This court has addressed the issue of non-compliance with family law judgments pending appeal in the cases of Brophy v. Brophy (2004), 2004 CanLII 25419 (ON CA), 45 R.F.L. (5th) 56 (C.A.); Dickie v. Dickie (2006), 2006 CanLII 576 (ON CA), 78 O.R. (3d) 1 (C.A.), rev’d 2007 SCC 15, [2007] 1 S.C.R. 346 approving dissenting reasons of Laskin J.A. on this point; and Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257. Most recently in Murphy, the court refused to hear the submissions of the responding party who was in default.

[3] In Brophy in 2004, the court discussed the alternatives when faced with this situation. One is to dismiss the appeal, another to adjourn pending compliance with the trial order. Although the court in that case then determined that it did not matter because there was no merit to the appeal, in our view, it is no longer the best practice to proceed in that way.

[4] 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.

[5] In this case, the court is not prepared to hear the appeal until A.A. has complied with the support orders made at trial. The appeal is adjourned until September 29, 2016 on the condition that the A.A. performs the following as ordered by the trial judge: (1) pay the arrears of support in the amount of $287,462.00, (2) post a letter of credit for future spousal support in the amount of $585,000.00, and (3) put in place a life insurance policy on his life payable to the wife for that amount.

[6] Costs of this motion to be determined as part of the costs of the appeal.

[7] As the appellant S.A. paid the amounts owing for costs prior to the appeal, the court proceeded to hear his appeal with regard to the mortgage, and reserved its decision.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“P. Lauwers J.A.”