2019 NLCA 44, 2019 NLCA 44

James Wiscombe (applicant/appellant) v. Sandra Martin (respondent) (19/57) Wiscombe v. Martin 2019 NLCA 44 4 C.A.N.L.R. 646 Court of Appeal of Newfoundland and Labrador Butler J.A. July 16, 2019

Summary: The trial judge ordered, in part, that Mr. Wiscombe pay to Ms. Martin spousal support of $60,000, to be paid within 60 days of the order. Mr. Wiscombe sought a stay of enforcement of this portion of the order. Held: Application allowed. Butler J.A.: There was a serious issue to be determined on appeal, being the quantum and duration of spousal support following a 30 year marriage. The potential that Mr. Wiscombe would not be able to recoup his overpayment of the lump sum amount in the event of Ms.

Martin’s death was sufficient to meet the second prong of the test for a stay of enforcement (paragraphs 5-7). The balance of convenience favoured granting a stay. However, fairness and equity required the imposition of conditions. The $60,000 amount was ordered to be paid into Court and filing timelines were set to expedite the hearing of the appeal (paragraphs 8-10). Cases cited: Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65 Jadhav v . Kielly , 2018 NLCA 50 Counsel: Donald A. MacBeath Q.C., for the applicant/appellant; Appearing on her own behalf, the respondent.

The application was heard and judgment delivered orally on July 16, 2019 by Butler J.A. The following memorandum of disposition was filed on July 17, 2019 by Butler J.A. ______________________________________________________________

Butler J.A.:

SUMMARY [ 1 ] Application for a Partial Stay of Enforcement of the terms of spousal support ordered by Justice Frances Knickle on April 25, 2019. [ 2 ] The trial judge determined that the spousal support payable should be reduced from the terms of the last Order and should be time limited instead of indefinite in duration. Specifically she ordered that Mr.

Wiscombe pay: $2,900.00 per month ($34,800.00 annually) for five years (April 1, 2019 – March 31, 2024); $2,500.00 per month ($30,000.00 annually) for five years (April 1, 2024 – March 31, 2029) But that the $60,000.00 due periodically for the period April 1, 2027 – March 31, 2029 should be paid as a lump sum within 60 days of her decision. [ 3 ] It was only enforcement of payment of the $60,000.00 lump sum that the Appellant/Applicant sought to have lifted pending the appeal.

SUBMISSIONS [ 4 ] In his Factum and oral submissions, counsel for the Appellant/Applicant suggested that he can meet the three prong test for a Stay of Enforcement endorsed by this court in Weirs Construction Limited v Warford Estate , 2016 NLCA 65 (and other jurisprudence) as follows: Serious Issue to be determined ● the trial judge did not explain the basis for her decision to substitute the last 2 years of periodic support as a lump sum; ● the partial lump sum was not requested by either party; ● there was no adjustment for the present value of the future income stream in the order for payment of $60,000.00.

Irreparable Harm ● While Mr. Wiscombe has the ability to pay, the trial judge concluded that Ms. Martin was impecunious and specifically that she owed Revenue Canada over $82,000.00 and had numerous credit card debts. Counsel suggested that if the $60,000.00 were paid, and if this court should determine that the trial judge was in error in this portion of the award, Mr. Wiscombe would not be able to recoup his lump sum payment. Balance of Convenience ● Counsel asserts that his Appeal Book and Factum can be filed by late August or early September and agreed that the court could set an appeal date today.

Thus, he argues that any payment due to Ms. Martin would be delayed by only a few months (subject to the reserve time for this court’s decision). REASONS [ 5 ] A decision was rendered orally. I was satisfied that there was a serious issue to be determined on Appeal being the quantum and duration of spousal support following the parties’ 30 year, and therefore long term marriage. Ms. Martin’s oral submissions were suggestive of a potential cross appeal on the calculation of Mr.

Wiscombe’s income for spousal support purposes. [ 6 ] As to irreparable harm, while impecuniosity and inability to recoup payment are usually sufficient to meet the second prong of the test (see for example Jadhav v Kielly 2018 NLCA 50 ), I noted that this case is unique because if the $60,000.00 were paid and that portion of the trial judge’s decision was overturned, Mr. Wiscombe still had the ability to recoup his overpayment through the periodic payments due over the next 8 – 10 years. [ 7 ] However, I felt that there was nevertheless the potential for irreparable harm to Mr. Wiscombe because should Mr.

Wiscombe pay the $60,000.00 and Ms. Martin die prematurely, his ability to recoup was lost. [ 8 ] The case fell therefore to be determined on the balance of convenience. As the successful litigant, Ms. Martin was prima facie entitled to the fruit of her litigation. If a stay were granted and Mr. Wiscombe died prematurely, without security, Ms. Martin would have to pursue his estate. [ 9 ] On the other hand, Mr. Wiscombe was prepared to expedite the appeal so that Ms. Martin would not be inconvenienced or at risk for the long term. DISPOSITION

[ 10 ] On balance I concluded that the test for a stay was met but that fairness and equity required the imposition of the following conditions: 1. Payment of $60,000.00 into court by July 26, 2019 in substitution for the trial judge’s Order of payment to Ms. Martin within 60 days; and 2. Establishing the following timelines for the expedited appeal: (

a) any Notice of Cross Appeal to be filed by August 5 th (

b) Appellant’s Factum and Appeal Book by September 9 th (

c) Reply Factum by October 11 th and (

d) appeal to be heard on November 12 th, 2019 at 10:00 am. Application allowed.