COURT OF APPEAL FOR ONTARIO

CITATION: K.K. v. M.M., 2023 ONCA 366

DATE: 20230518

DOCKET: M54243 & M54268 (C70159)

Huscroft J.A. (Motion Judge)

DOCKET: M54243

BETWEEN

K.K.

Applicant (Appellant/Moving Party)

and

M.M.

Respondent (Respondent/Responding Party)

DOCKET: M54268

AND BETWEEN

K.K.

Applicant (Appellant/Responding Party)

and

M.M.

Respondent (Respondent/Moving Party)

Gabrielle Pop-Lazic, for the appellant

Aida Pasha, for the respondent

Heard: May 16, 2023 by video conference

ENDORSEMENT

[1] The appellant seeks a stay of orders requiring him to pay retrospective child and spousal support, and a partial stay of ongoing support amounts he is required to pay pending the hearing of his appeal. The respondent seeks an order that the appellant be required to pay security for costs of his appeal.

[2] Both motions are dismissed for the reasons that follow.

The stay motion

[3] This is high-conflict family litigation, culminating in a trial that lasted over 18 days and resulted in lengthy reasons and supplemental reasons. The appellant asserts that the trial judge made numerous errors of law and palpable and overriding errors of fact.

[4] In seeking a stay, the appellant must satisfy the court on the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, at p. 334.

[5] I am prepared to assume that the appeal raises a serious question to be tried. This is a low threshold to meet and I say only that the appeal is not frivolous or vexatious.

[6] The appellant asserts three bases on which he would suffer irreparable harm. First, he says there is a serious concern that the respondent would be unable to repay any overpayment of support if his appeal is successful. Second, he points to negative health impacts as a result of the litigation. Third, he says that enforcement of the orders would have a negative impact on his credit rating.

[7] I am not persuaded that the appellant would suffer irreparable harm. The concern that the respondent would be unable to repay the amounts in question, should the appellant succeed on appeal, is speculative. I appreciate concerns about the appellant’s health, but whether and when he elects to undergo surgery is for him to decide, and, if necessary, a variation in the orders can be sought. I note that the appellant has not sought an order to expedite the hearing of the appeal in this matter. I also do not consider the possible impact on the appellant’s credit rating to be the sort of harm that would justify staying an order to pay arrears of support in this case.

[8] With respect to the balance of convenience, the appellant says that the respondent would not be worse off if the stay were granted, as amounts owing are historical and do not relate to her current needs. Further, the appellant asserts that the respondent has not demonstrated that the amount of support ordered is required to meet her needs, and that even at a reduced amount she would have sufficient funds to meet her needs and those of the children. The short answer to these submissions is that the respondent is under no burden to establish that she needs the money the trial judge has ordered the appellant to pay. The burden is on the appellant to establish that the trial judge’s orders should be stayed, and I am not so persuaded. Nor am I persuaded that it is appropriate to grant a “partial stay” to the appellant, reducing his monthly support obligation.

[9] The appellant’s motion for a stay is dismissed.

The security for costs motion

[10] The respondent brings a motion seeking security for costs on the appeal and suggests a sum of over $200,000. This is an amount well in excess of the likely costs of any appeal and appears to be confused with a request that the appellant pay to the respondent, or pay into court, monies that will be contested on the appeal.

[11] Although the respondent was awarded costs by this court that have not been paid, she also has significant outstanding costs orders against her. In all of the circumstances, I am not satisfied that the justice of the case supports an order for security for costs of the appeal.

[12] The respondent’s motion for security for costs is dismissed.

Costs

[13] Success on the motions is divided, but the respondent prevailed on the more significant stay request. She is entitled to $4,000 in costs for the motions today and the prior appearance before Feldman J.A., all inclusive.

“Grant Huscroft J.A.”