Court File and Parties

COURT FILE NO.: FS-21-99557-00 DATE: 2024 08 06

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

MIRELICA SKRAK Applicant

Martine Ordon, counsel for the Applicant

• and -

BRANKO SKRAK Respondent

Veena Pohani, counsel for the Respondent

HEARD: April 11, 2024, in Guelph

REASONS FOR DECISION

EMERY J.

[1] Mr. Branko Skrak brings this motion for a stay of the order to pay spousal support to Mirelica Skrak granted in the Reasons for Judgment of Agarwal J. dated March 15, 2024 (the “decision”) at 2024 ONSC 1574. He brings the motion in this court under Rule 63.02(1)(a) of the Rules of Civil Procedure as he has appealed parts of the decision granting final orders, including the retroactive and ongoing spousal support Mr. Skrak was ordered to pay. The filing of a notice of appeal does not automatically stay a support order or an order that enforces a support order: rule 38(33) of the Family Law Rules.

What the moving party must show

[2] The parties agree that the three part test for a stay in RJR-MacDonald Inc. v. Canada (Attorney General) applies to this motion. This test has been considered and applied to the family law context: McMurter v. Director (FRO), 2017 ONSC 3662, and Nguyen v. Tran, 2018 ONCA 985, at para. 3. The test requires the moving party to demonstrate the following:

a. there is a serious issue to be tried;

b. the moving party will suffer irreparable harm if the relief is not granted; and

c. the balance of convenience favours the granting of the order sought.

[3] Mr. Skrak submits that the reasons given in Agarwal J.’s decision to make the support orders show the errors made in making those orders. He submits that the evidence he has filed on the motion demonstrates his right to a stay.

[4] Ms. Skrak diametrically opposes his position on each branch of the test, and asks that the motion be dismissed.

Positions of the parties

[5] Mr. Skrak submits that Agarwal J. erred by finding that Ms. Skrak is entitled to spousal support. He submits that the trial judge failed to take his age, fact of his retirement and ability to pay into consideration when making the support order. He submits that making an ongoing support order of indefinite duration is contrary to the “clean break” principle. He submits that the bar for meeting the serious issue part of the test is low, and that he need only show that the appeal on spousal support is neither frivolous or vexatious, meaning that he has a reasonable prospect of success. He need not show that he will win the appeal, or even that he will probably win: Fiala Estate v. Hamilton, 2008 ONCA 784 (at para. 15).

[6] Mr. Skrak claims that he will suffer irreparable harm if he is required to pay the $56,000 ordered for retroactive spousal support and the ongoing spousal support of $550 each month pending appeal for two reasons. First, he states he cannot afford it based on his age and the fact he is now retired. Second, he expresses a belief that he may never recover the amounts from Ms. Skrak if he is successful on appeal and those orders are set aside.

[7] Mr. Skrak argued that the balance of convenience to the parties favours a stay on that branch of the test. He submits that he will be exposed to financial loss, which would be a greater inconvenience to him than the moving costs and rent than the inconvenience Ms. Skrak would experience if she cannot afford the house in which she presently lives.

[8] At the motion, Mr. Skrak offered to pay the $56,000 into court pending appeal as security for any order granting a stay.

[9] Mr. Skrak has also appealed the order made by Agarwal J. to pay Ms. Skrak approximately $318,000 for equalization. On the equalization issue, Mr. Skrak submits that he has demonstrated there is a serious issue to be tried because Agarwal J. erred in determining what date of marriage deductions should have been taken off his net family property. This error affected the amount of the equalization payment Mr. Skrak was ordered to pay. While the stay he seeks would not apply to the appeal on equalization, the proper amount payable for equalization is relevant to his argument that there would be no equalization payment against which he might claim a credit if he was successful on both issues.

[10] Ms. Skrak takes the position that the trial judge made the necessary findings of fact based on the evidence at trial. She submits that Agarwal J. applied the correct test to conclude she was entitled to the retroactive support and exercised his discretion properly to order Mr. Skrak to pay $56,000 ($1,600 a month for 35 months). She also submits that Agarwal J. used the proper framework to order Mr. Skrak to pay ongoing support in the amount of $550 monthly commencing October 1, 2022 by applying the “Rule of 65” discussed in Fisher v. Fisher, 2008 ONCA 11, at para. 104. As a result, she submits there is no serious issue for appeal.

[11] Ms. Skrak further submits that Mr. Skrak has not demonstrated that he cannot afford to pay the support ordered, or that he will suffer irreparable harm if the stay is not granted.

Analysis

[12] In the context of appeals of support orders, the Court of Appeal held in Mason v. Mason, 2016 ONCA 725 at para. 111 that an appellate court should not intervene in a support award unless the reasons of the trial judge discloses an error in principle, a significant misapprehension of the evidence, or if the award is clearly wrong.

[13] To have any prospect of success on appeal, the appellant must show that the trial judge made palpable and overriding errors in his findings, such as failing to address a material issue, failure to take into account relevant evidence or taking into account evidence that was not relevant to the question: Froehlich-Fivey v. Fivey, 2016 ONCA 833. This standard of appellate review is consistent with the tests to apply on questions of fact or mixed fact and law set out in Housen v. Nikolaisen, 2002 SCC 33.

Serious issue

[14] It is a daunting task to pre-suppose what the Court of Appeal might decide on the merits of a trial decision when the motions judge is tasked with assessing whether there is a serious issue for appellate review. I am asked on this motion to determine if there is a reasonable prospect of success on the appeal of the support order.

[15] I find that I do not need to decide that prospect of success because I am able to dismiss the motion on the basis that Mr. Skrak has not shown he will suffer irreparable harm if the stay is not granted. However, I note the following.

[16] Agarwal J. carefully examined the purpose of spousal support in paras. 71-74 of the decision. In paras. 75-82 he applied those purposes to the evidence given at trial and found that Ms. Skrak was entitled to spousal support. Those correlations are findings of fact that attract the deference of a court of review. Questions of fact are not subject to appellate interference unless a palpable and overriding error on the evidence has been made to reach those findings. See Hickey v. Hickey.

[17] I am also mindful that Agarwal J. assessed the quantum of the support payable in paras. 83 to 86 by referring to the Spousal Support Advisory Guidelines and exercising his discretion based on the evidence given at trial. I refer in particular to the evidence considered by the trial judge in para. 85.

[18] Of further note, Ms. Skrak attached the DivorceMate calculations to her submissions at trial to show the range for spousal support under the SSAG’s based on the evidence at trial. The SSAG’s themselves were not in evidence because they are relied upon by the courts regularly to determine the amount to award for spousal support under s. 15.2 of the Divorce Act.

[19] For the computation of the arrears and for the award of ongoing support at a lower amount after October 1, 2022, I note that Agarwal J. provided the legal basis in paras. 87 and 88 to order that Mr. Skrak must pay that support indefinitely. Mr. Skrak submits that the trial judge made an error by not applying the “clean break” principle in the case. However, it appears that Mr. Skrak had not considered the principles of law in the decision of the Supreme Court in Miglin v. Miglin, 2003 SCC 24 when he formed that view. See Djekic v. Zai, 2015 ONCA 25 for the availability of the “rule of 65” for the court to apply, and its impact on the duration spousal support payable.

Irreparable harm

[20] There is no evidence that Mr. Skrak will suffer irreparable harm if a stay is not granted. No evidence has been tendered to show that Ms. Skrak will not be able to repay the spousal support he must pay her if the order is reversed.

[21] Agarwal J. made findings of fact with respect to date of marriage deductions claimed by Mr. Skrak on grounds that he had not proven those deductions or for credibility reasons, not because he failed to consider them (at paras. 54 to 66).

[22] I am of the view there is a reasonable chance that Mr. Skrak will owe an equalization payment of some description in the final analysis. It bears mentioning that the equalization payment was adjusted in para. 4(c) of the decision from $368,029.86 to $318,029.86 to account for the $50,000 Mr. Skrak advanced to Ms. Skrak to settle her earlier motion for spousal support on a without prejudice basis. Just as Mr. Skrak was given a credit for that amount against equalization, so he will be able to seek an order setting off the amount he is to pay her for spousal support from any equalization payment he may have to pay.

[23] Mr. Skrak filed no financial evidence on this motion to show that he cannot afford to pay the support ordered. There is no evidence but his statement that the payments ordered will cause him financial distress. To the contrary, he has shown that he is capable of paying the retroactive support ordered by the offering to pay that $56,000 into court.

[24] It appears from Mr. Skrak’s materials that his reason for seeking a stay is chiefly to deprive Ms. Skrak of any payment for spousal support until his appeal route is exhausted.

[25] I therefore find that Mr. Skrak will not suffer irreparable harm if a stay is not granted.

Balance of convenience

[26] The balance of convenience favours Ms. Skrak as the party who is owed the support and relies on it to meet her expenses. It should not inconvenience Mr. Skrak who has the resources to pay.

Order

[27] The motion is dismissed.

[28] The parties are encouraged to resolve the costs of the motion between them. If Ms. Skrak is requesting the court to order costs, she shall serve and file written submissions consisting of no more than two pages, not including any bill of costs or offer to settle, by August 16, 2024.

[29] Mr. Skrak shall then have until August 30, 2024 to file responding submissions, subject to the same page limits. No reply submissions are permitted.

[30] All submissions on costs may be filed by email to my judicial assistant at melanie.powers@ontario.ca.

Emery J. Released: August 6, 2024