In Kalmbach v Kalmbach, 2024 ABCA 281, the applicant sought a stay pending appeal from an order of the case management justice, which held her in civil contempt and stayed the payment of child support, spousal support, arrears in support and mortgage payments until she purged her contempt.
Under rule 14.48, the Court has discretion to stay an Order in advance of appeal. Rule 14.48 reads as follows:
14.48 An application to stay proceedings or enforcement of a decision pending appeal may be made:
- to the judge who made that decision, or
- to a single appeal judge, whether or not the application was made to the judge who made the decision, and whether or not that application was granted or dismissed.
The test for a stay is set out in RJR-MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC). The applicant bears the onus of meeting the test, as reiterated in Kalmbach:
- Serious question – Is the question to be tried a serious one as opposed to a frivolous and vexatious one?
- Irreparable harm – Would the applicant suffer irreparable harm (harm that is difficult to compensate in damages) if the stay is refused?
- Balance of convenience – If the stay is refused, will the applicant suffer greater harm than the respondent would suffer if the stay were granted?
In a family law case, the Court must also consider the best interests of any children who may be impacted by the stay.
In Kamblach the applicant had missed a contempt application, only notifying the case management Justice’s assistant, via email, the day before the appearance that she would not be attending. The applicant argued that granting the order in her absence was a breach of procedural fairness and the order harmed the child, as it stayed child and spousal support.
The applicant was partially successful, and spousal support was reinstated until the Appeal could be heard.
The Court noted that, simply because the best interests of the child are involved, it does not follow that the ‘serious question’ component of the RJR test are met. However, the Court ultimately concluded, under parts two and three of the RJR test, that the suspension of spousal support was adversely impacting the child, who was about to start school.
At McCuaig Desrochers LLP we know that going through a divorce and separation is a challenging time. If you have questions or concerns about your rights or obligations, please contact our Family Law Practice Group for guidance and assistance.
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