2018 NLCA 74, 2018 NLCA 74

Michelle Thorne (applicant/appellant) v. Sharon Anne Thorne, John Frederick Thorne, Richard Vincent Thorne, Rose Ann Thorne Walsh, Leonard Thorne, Viki Marie Duffenais, Sean Micheal Thorne, Gregory Thorne and Ronnie Thorne (respondents) (18/102) Indexed As: Thorne v. Thorne 2018 NLCA 74 3 C.A.N.L.R. 710 Court of Appeal of Newfoundland and Labrador Welsh J.A. December 19, 2018

Summary: The appellant applied for a stay pending appeal of an order of the Supreme Court of Newfoundland and Labrador regarding the disposition of monies in investment and bank accounts held by the mother of the parties to the appeal, prior to her death. Held: Application allowed in part, partial stay of enforcement granted. Welsh J.A.: A partial stay as suggested by the respondents was most consistent with the balance of inconvenience.

The appeal was not frivolous, but the respondents submitted that, if the money was paid out pursuant to the order in the court appealed from, and if the appeal resulted in a change to that order, the respondents would undertake to return the money to be disposed of as ordered to reduce the risk of irreparable harm. A stay of the enforcement of the order under appeal regarding the remaining monies was ordered.

Counsel: Appearing on her own behalf, the applicant/appellant; Gregory French, for the respondents John Frederick Thorne, Richard Vincent Thorne, Rose Ann Thorne Walsh, Leonard Thorne and Viki Marie Duffenais; Jillian Hewitt, for the respondents Sharon Anne Throne and Sean Michael Thorne; Appearing on their own behalves, the respondents Ronnie Thorne and Gregory Thorne. This application was heard and decision rendered orally on December 18, 2018 by Welsh J.A.

The following memorandum of disposition was filed on December 19, 2018 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] Michelle Thorne applied for a stay of enforcement of the decision of a judge of the Supreme Court of Newfoundland and

Labrador regarding the disposition of monies in investment and bank accounts held by the mother of the parties to this appeal, prior to her death. Under the deceased’s will, the residue was bequeathed to three of her ten children; Michelle, the appellant/applicant, and Greg and Ronnie Thorne. The latter two advised the Court that they were not participating in this application or in the appeal. Michelle Thorne represented herself, while five of the respondents were represented by Mr. French and two were represented by Ms. Hewitt.

Having considered the submissions of the parties, I made an order as follows. [ 2 ] The trial judge concluded that the monies at issue did not form part of the residue under the will, but were intended by the deceased to be divided among her ten children. Approximately $50,000 has been paid into court, with approximately $100,000 remaining in the bank accounts. [ 3 ] Michelle Thorne submitted that, for financial reasons, she was unable to pay for a transcript of the trial for purposes of the appeal.

Accordingly, she applied for directions regarding the possible use of the audio recording. [ 4 ] At the hearing, I considered the submissions of the parties in light of the three-pronged test to be applied when an appellant requests a stay of enforcement of the order pending appeal. Regarding the second prong of the test, the respondents submitted that, if the money was paid out pursuant to the order in the court appealed from, and if the appeal resulted in a change to that order, the respondents would return the money to be disposed of as ordered.

Counsel indicated that written undertakings to that effect could be provided by the respondents. [ 5 ] Regarding the third prong of the test, the balance of inconvenience, the respondents submitted that they have waited almost ten years for completion of the disposition of their mother’s estate. While they did not resile from their position that the application for a stay should be dismissed, counsel suggested, as an alternative, a partial stay. That is, the order regarding the monies held in court would not be stayed. Those monies would be paid out according to the order.

At the same time, the order regarding disposition of the monies in the bank accounts would be stayed pending disposition of the appeal. Michelle Thorne accepted the suggestion of a partial stay. Receipt of her share of that money would provide her with sufficient funds to obtain the necessary transcript of the three-day trial for purposes of the appeal. [ 6 ] Having considered the parties’ submissions, I was satisfied that a partial stay as suggested by the respondents was most consistent with the balance of inconvenience.

In order to limit further delay, dates were set for the filing of materials and the hearing is set for April 17, 2019. [ 7 ] Accordingly, I ordered that the monies held in court should be paid out to Mr. French, in trust, to be disbursed according to the order under appeal. The respondents who are represented by counsel are required to provide a written undertaking that they will re-pay the money, if required as a result of the disposition of the appeal. Finally, pending the disposition of the appeal, I ordered a stay of the enforcement of the order under appeal regarding the remaining monies.

Application allowed.