mai 25. 2020

COURT OF APPEAL SUMMARIES (MAY 19 - 22, 2020)

Abu-Saud v. Abu-Saud, 2020 ONCA 314 (CanLII)

[Benotto J.A. (Motion Judge)]

COUNSEL:

W. R. Clayton, for the responding party

S. E. Hassan, for the moving party

Keywords: Family Law, Support Order, Equalization, Rules of Civil Procedure, r. 63.01(1), Murphy v. Murphy, 2015 ONCA 69, Dickie v. Dickie (2006), 78 OR (3d) 1, Popa v. Popa, 2018 ONCA 972

FACTS:

The parties, who were married for 27 years, separated in 2015 and the respondent brought the underlying application seeking spousal support and an equalization of net family property. The highly contested litigation continued until 2019 when the trial judgment was released. The trial judge awarded the respondent spousal support retroactive to the date of separation. The support was ordered on both a compensatory and a needs basis, recognizing her important contribution to the management of the household and to the appellant’s business.

The appellant has not complied with the support order that he sought to appeal. The respondent brings this motion to adjourn the appeal. She also requests a partial lifting of the automatic stay for a portion of the equalization payment, security for costs and an extension of time to file her factum.

ISSUES:

(1) Should the appeal be adjourned and partial stay of the order appealed from be lifted?

HOLDING:

Motion granted.

REASONING:

(1) Yes. The appeal was stayed on terms. The Court ordered that the appellant to pay the respondent the support owed together with the portion of the equalization. These payments were to be paid, together with outstanding interest.

Rule 63.01(5) provides that the court may order that the stay provision in Rule 63.01(1) does not apply. Usually, the court looks to the merits of the appeal, the need for funds, and whether there is a danger that the payment will not be made: Popa v. Popa, 2018 ONCA 972, at para. 7. This is not a case like Popa. Here the appellant acknowledges that a portion of the equalization payment is owed. There is therefore no dispute about the funds requested by the respondent. In light of all the circumstances, the Court found that it would be just that the funds be paid now. The automatic stay on the equalization payment was therefore lifted to the extent of half of the admitted amount owing.