St-Jules v. St-Jules, 2012 NSCA 17

Editor’s Note: Corrigendum released on February 13, 2012. Original judgment has been corrected with text of corrigendum appended. NOVA SCOTIA COURT OF APPEAL Citation: St-Jules v. St-Jules , 2012 NSCA 17 Date: 20120213 Docket: CA 348221 Registry: Halifax Between: Yvan St-Jules Appellant(Applicant) v. Vivian St-Jules Respondent Judge: The Honourable Justice Joel E. Fichaud Appeal Heard: February 9, 2012, in Halifax, Nova Scotia, in Chambers Held: Motion for stay dismissed with costs in the cause.

Counsel: Yvan St-Jules, appellant in person Susanne Litke and Leon Tovey (articled student), for the respondent Reasons for judgment : [ 1 ] Mr. St-Jules applies for a stay, pending his appeal, of the Supreme Court - Family Division ’ s order that he pay child support for his two children.

[2] Mr. and Ms. St-Jules married in 1993 and divorced in late 2007. They have two sons, born in March 1995 and April 1997. Though the children are under a joint custody arrangement, Ms. St-Jules has primary care. The Corollary Relief Order of November 23,2007 provided no child support payments by Mr. St-Jules. This was in return for Mr. St-Jules’ agreement to assume all of thematrimonial debt totalling $74,718.51, by minimum monthly payments of $1,740 until that debt was satisfied. [3] Mr. St-Jules did not make the required payments toward the matrimonial debt.

He filed an assignment in bankruptcy, and hisbankruptcy remains undischarged. Creditors have sought recovery of matrimonial debts from Ms. St-Jules. [4] Ms. St-Jules applied to vary the Corollary Relief Order. The motion was heard by Justice Lynch of the Supreme Court -Family Division. Following an oral decision, Justice Lynch issued a Variation Order on April 7, 2011. The Variation Order recited that“Yvan St-Jules is found to be intentionally under-employed and is found to have an imputed annual income of $65,000”, and determinedthat there was a material change of circumstances since the Corollary Relief Order.

Respecting child support, the Variation Order: (1)confirmed that, in lieu of child support, Mr. St-Jules was liable for $1,740 monthly from December 1, 2007 through the end of 2009 toretire the matrimonial debts; and (2) starting retroactively at January 1, 2010, Mr. St-Jules was to pay child support of $917 per month,the table amount for his imputed income under the Federal Child Support Guidelines. [5] On May 6, 2011, Mr. St-Jules appealed the Variation Order to the Court of Appeal. His grounds of appeal are that the judgeerred (1) in denying his request for an adjournment, (2) by imputing income to Mr.

St-Jules, (3) by awarding retroactive child supportand (4) by misinterpreting or misapplying the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended. The appeal is scheduledfor hearing on April 13, 2012. [6] On January 6, 2012, Mr. St-Jules filed a motion for a stay of the Supreme Court - Family Division’s Variation Order pendingthe decision of the Court of Appeal on Mr. St-Jules’ appeal. I heard the motion on February 9, 2012, and reserved. These are myreasons. [7] Rules 90.41(1) and (2) say: 90.41

(1) The filing of a notice of appeal shall not operate as a stay of execution or enforcement of the judgment appealed from.

(2) A judge of the Court of Appeal on application of a party to an appeal may, pending disposition of the appeal, order stayed theexecution and enforcement of any judgment appealed from or grant such other relief against such a judgment or order, on such terms asmay be just. [8] The test under Rule 90.41(2) remains that stated by Justice Hallett in Fulton Insurance Agencies Ltd. v. Purdy (1990), (NS CA), 100 N.S.R. (2d) 341, paras 28-30, under the former Rule 62.10(2).

The stay applicant must show that either (1)there is an arguable appeal, and denial of the stay would cause him irreparable harm and the balance of convenience favours a stay, or(2) there are exceptional circumstances making it just that a stay be granted: La Ferme D’Acadie v. Atlantic Canada OpportunitiesAgency, 2009 NSCA 5, para 11; Gill v. Hurst, 2010 NSCA 104, para 10; Halifax (Regional Municipality) v. Casey, 2011 NSCA 69, para13. [9] In my respectful view, Mr. St-Jules has not satisfied any of the requirements of the tests for a stay. [10] Mr.

St-Jules has provided no evidence or submission to support the bald statement of the grounds in his Notice of Appeal. Hehas cited nothing from Justice Lynch’s reasoning, as arguably erroneous, and has not even provided a transcript of Justice Lynch’s oralreasons from almost a year ago. His bare grounds of appeal do not satisfy me that he has an arguable appeal. [11] Mr. St-Jules’ submission on the motion basically is that relief from his child support obligations will help him to deal with hisfinancial turmoil. That does not suffice to establish irreparable harm. Clearly he is in financial distress. But Mr.

St-Jules filed his

assignment in bankruptcy well before the Variation Order that is under appeal. The record for this motion contains little to explain either the reasons for his bankruptcy or the events related to the administration of his estate. Mr. St-Jules ’ financial difficulties predated his assignment in bankruptcy, and were not caused by the later Variation Order. It is the Variation Order that, for the first time, required him to pay $917 per month for his children. It is that $917 monthly that Mr. St-Jules seeks to eliminate with the appeal, and suspend with the stay. [ 12 ] Mr.

St-Jules has provided no evidence of his current or projected income. Neither has he offered specific evidence of his current or projected expenses that he proposes to pay instead of support for his children. It is impossible for me to measure his available income against his needs. [ 13 ] Normally a trustee in bankruptcy allows a bankrupt to utilize his post-bankruptcy income to satisfy the bankrupt ’ s appropriate current expenses, before surplus income is paid to the trustee for the creditors.

This matter is addressed in ss. 68 and 69.41 of the Bankruptcy and Insolvency Act and the Superintendent of Bankruptcy ’ s Directive on the subject. For this motion, it would be useful to have evidence whether, and to what extent, Mr. St-Jules ’ trustee permits Mr. St-Jules to apply his current income to his current child support obligation of $917 per month, before any surplus is paid to the trustee. Mr. St-Jules has provided no evidence on that topic. Mr. St-Jules was asked about this at the stay hearing. From his response, I understand that Mr.

St-Jules may not have reported to the trustee with information that was required by the trustee, and this may have hindered the trustee ’ s administration of the estate including the calculation of Mr. St-Jules allowable current expenses and surplus current income. [ 14 ] Ms. St-Jules has filed an affidavit for the motion that specifically addresses some of the pertinent facts. According to her affidavit, Mr. St-Jules failed to make the minimum monthly payments required by the Corollary Relief Order, directed the creditors to contact Ms.

St-Jules, has paid about $2,200 toward his child support obligations since the Variation Order, that amount having been collected through the Maintenance Enforcement Program, and owes child support arrears of $21,506.99. This is in addition to the unpaid amounts owing for the matrimonial debts under the original Corollary Relief Order. [ 15 ] An applicant for a stay has the onus to present evidence that establishes the prerequisites for the stay. Mr.

St-Jules has not come close to satisfying his burden to show irreparable harm or to address his side of the balance of convenience. [ 16 ] Neither is there any evidential basis to support Fulton ’ s secondary test - exceptional circumstances that justify a stay in the interests of justice. [ 17 ] I dismiss the motion with costs in the cause. Fichaud, J.A.

NOVA SCOTIA COURT OF APPEAL Citation: St-Jules v. St-Jules , 2012 NSCA 17 Date: 20120213 Docket: CA 348221 Registry: Halifax Between: Yvan St-Jules Appellant(Applicant) v. Vivian St-Jules Respondent Revised judgment: The text of the original judgment has been corrected according to this erratum dated February 14, 2012. Judge: The Honourable Justice Joel E. Fichaud

Appeal Heard: February 9, 2012, in Halifax, Nova Scotia, in Chambers Held: Motion for stay dismissed with costs in the cause. Counsel: Yvan St-Jules, appellant in person Susanne Litke and Leon Tovey (articled student), for the respondent Erratum: In para. 4, line 9 - replace “2110" with “2009" and in para. 4, line 10 - replace “January 1, 2011" with “January 1, 2010".