r v. Braund, 2017 NLCA 52

Darren Dion Taylor (applicant/appellant) v. Juanita Lynn Braund (Taylor) (respondent) (17/66) Indexed As: Taylor v. Braund (Taylor) 2017 NLCA 52 2 C.A.N.L.R. 168 Court of Appeal of Newfoundland and Labrador Welsh J.A. August 10, 2017

Summary: The applicant father applied under rule 42(2) of the Court of Appeal Rules , NLR 38/16 for a stay pending his appeal of a family court order which varied the amounts of monthly support he was to pay for his two sons.

The applications judge increased the amount of payable monthly support; ordered the increase to take effect retroactively with the total of the retroactive support, amounting to approximately $7,000, to be paid in full within ninety days by September 29, 2017; ordered any arrears outstanding from the original order to be paid forthwith; ordered the amount of $383.48 to be paid toward a dental bill. Held: Application dismissed.

Welsh J.A.: The test to obtain a stay of enforcement pending appeal has three prongs: whether there is a serious issue to be argued on appeal; whether the applicant for the stay will suffer irreparable harm if the stay is not granted; whether an assessment of the balance of inconvenience favours the applicant. The order of the applications judge can be divided into three components: (1) payment of support going forward; (2) payment of retroactive support; and (3) payment of $383.48 for a dental bill. The amount of the dental bill has already been paid and, accordingly, is irrelevant for purposes of the test.

Payment of child support on an on-going basis could not be said to result in irreparable harm under the second prong of the test, nor would it engage the balance of convenience in the father’s favour under the third prong. The increased amount was determined according to the Child Support Guidelines and would almost certainly have been imposed when the initial order was recalculated in accordance with that order in August 2017. If it should be determined on appeal that the recalculated amount should be applied commencing one or two months later, any necessary adjustment would be minimal.

The order to pay of retroactive support totaling approximately $7000, may, depending on the particular circumstances, be sufficient to satisfy the test for a stay. However, it is unnecessary to decide this issue the appeal has been set to be heard before the payment becomes due. The request for a stay is therefore premature. Since no component of the application judge’s order met the test for a stay, the application was dismissed. Cases cited:

Weir’s Construction Limited v. Warford Estate , 2016 NLCA 65 , 1 C.A.N.L.R. 282 Counsel: Alexandra Kindervater, for the applicant/appellant; Appearing on her own behalf, the respondent. This application was heard on August 9, 2017 before Welsh J.A.

The following judgment was delivered on August 10, 2017 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] This is an application under rule 42(2) of the Court of Appeal Rules , NLR 38/16, to stay the enforcement of the order of Dymond J., filed on July 5, 2017, in which the judge varied the support to be paid by the father for his two sons. [ 2 ] Previously, by order filed on November 16, 2016, Peddle J. had ordered the father to pay child support of $271 per month, commencing August 15, 2016, based on an income of $18,091 as set out in his 2015 taxation notice of assessment.

The recalculation clause in that order required the father to provide a copy of his income tax return and his notice of assessment for the previous year by August 11th of each year, commencing in 2017. [ 3 ] The order filed on July 5, 2017 by Dymond J. requires the father to pay: 1. Monthly support of $1116.70, commencing July 1, 2017, based on an income of $78,500 as set out in the father’s 2016 notice of assessment; 2.

Monthly support of $1116.70 retroactive from November 1, 2016 to June 30, 2017, reduced by any amounts of child support paid by the father during that time, with the total of the retroactive support, amounting to approximately $7,000, to be paid in full within ninety days from July 1, 2017 (September 29, 2017); 3. Forthwith any arrears outstanding from Peddle J.’s order that was filed November 16, 2016 ($271 per month); 4. The amount of $383.48 toward a dental bill. (Counsel advised that this amount has been paid.) [ 4 ] The father applies for a stay of Dymond J.’s order pending determination of the appeal.

No application for a stay has been made in the Supreme Court, Trial Division (rule 42(2)). [ 5 ] The test to be applied in determining whether to grant an application to stay the enforcement of an order is discussed in Weir’s Construction Limited v. Warford Estate , 2016 NLCA 65 : [16] The first prong of the test is whether there is a serious issue to be argued on appeal.

This requires a preliminary, but not a detailed or extensive, investigation of the merits of the appeal to ascertain whether the appeal is frivolous or vexatious. … [17] The second prong of the test is whether the applicant for the stay will suffer irreparable harm if the stay is not granted.

It is the nature of the harm, rather than its magnitude, that must be considered. … [18] The third prong of the test is an assessment of the balance of inconvenience. … [ 6 ] In applying this test, I would divide Dymond J.’s order into three components: (1) payment of support in the amount of $1116.70 per month commencing July 1, 2017; (2) payment of retroactive support from November 1, 2016 to June 30, 2017; and (3) payment of $383.48 for a dental bill. [ 7 ] Regarding the third component of the order, the amount of the dental bill has already been paid and, accordingly, is irrelevant for purposes of the test. [ 8 ] In considering the first component of the order, payment of support of $1116.70 per month commencing July 1, 2017, under the question of irreparable harm, counsel for the father conceded that this amount, which was determined according to the Child Support Guidelines , would almost certainly have been imposed when Peddle J.’s order was recalculated in accordance with that order in August 2017.

If it should be determined on appeal that the recalculated amount should be applied commencing in August or September rather than July, any necessary adjustment would be minimal and could be addressed by adjusting the amount of support payable for a specified period. [ 9 ] I conclude that the payment of child support of $1116.70 per month on an on-going basis commencing July 1, 2017 could not be said to result in irreparable harm under the second prong of the test, nor would it engage the balance of convenience in the father’s favour

under the third prong. It follows that this portion of the order is not a basis on which to grant a stay of Dymond J.’s order. [ 10 ] The second component of the order, the payment of retroactive support of $1116.70 per month from November 1, 2016 to June 30, 2017, totaling approximately $7000, may, depending on the particular circumstances, be sufficient to satisfy the test for a stay. However, it is unnecessary to decide this issue at this time because the amount is not due until September 29, 2017. The appeal has been set to be heard on September 8, 2017.

In those circumstances I conclude that the request for a stay is premature. However, the father may wish to include in his factum a request in

Part V, “Order or Relief Sought”, for leave to apply for a stay should the Court not give its decision prior to September 29, 2017. [ 11 ] In the result, I am satisfied that there is no basis on which to grant a stay of Dymond J.’s order at this time. Accordingly, the application is dismissed. Costs will be costs in the cause of the appeal. Application dismissed .