Molloy v. Molloy, 2012 NSCA 28

NOVA SCOTIA COURT OF APPEAL Citation: Molloy v. Molloy , 2012 NSCA 28 Date: 20120312 Docket: CA 371180 Registry: Halifax Between: John Molloy Appellant (Applicant) v. Marie Molloy Respondent Judge(s): The Honourable Justice Joel E. Fichaud Motion Heard: March 8, 2012, in Halifax, Nova Scotia, in Chambers Held: Motion for amendment granted and motion for stay denied with costs of $500 in the cause Counsel: David A. Grant, for the appellant(applicant) Tracey M. Sturmy, for the respondent Reasons for judgment : [ 1 ] Mr.

Molloy applies for permission to amend his Notice of Appeal and for a stay, pending his appeal, of the Order that he pay $800 monthly spousal support. Background [ 2 ] The parties married in February 1972, had four children born between 1972 and 1980, and separated in August 1999. There have been no divorce proceedings and no payments of spousal support. In August 2010, Ms. Molloy applied in the Supreme Court of Nova Scotia (Family Division) for an order that Mr. Molloy pay spousal support. Justice Legere Sers heard the application.

[ 3 ] The judge ’ s decision ( 2011 NSSC 390 ), dated October 26, 2011, says that Ms. Molloy is 55 years old and Mr. Molloy is 59. According to the decision, Ms. Molloy ’ s income was $12,137 in 2008, $8,678 in 2009, $13,709 in 2010, and is currently at the level of $9,672 annually. She works part time at a pizzeria. After expenses she has a monthly deficit of $521.95.

The decision says her circumstances since separation “ have been dire at times ” , “ [h]er brother gave evidence that he has had to buy food for her on occasion and assist her ” and that “ she struggles hard to survive ” . [ 4 ] According to the decision, Mr. Molloy had his own financial challenges, having declared bankruptcy in 2005. But he earned $38,877 in 2008, $45,245 in 2009, $45,700 in 2010, and currently earns income at the level of $40,170 annually with group insurance. He is employed at Atlantic Towing, doing shift work on harbour tugs.

Apparently he took stress leave about three days before the court hearing. [ 5 ] Justice Legere Sers ’ decision reviewed the evidence and legal principles, and ruled that Mr. Molloy should pay spousal support of $800 monthly starting October 1, 2011. [ 6 ] The judge ’ s order was issued on December 6, 2011. On December 19, 2011 Mr. Molloy filed a Notice of Appeal. He prepared the Notice without assistance of counsel. His grounds of appeal included that he did not receive a fair trial and that Ms. Molloy ’ s support award was too high. [ 7 ] On February 17, 2012, Mr. Molloy filed the current motion.

He is now represented by counsel. His motion seeks to amend his Notice of Appeal. The amendment would add grounds that the judge erred by: (1) failing to consider the effect of Ms. Molloy ’ s delay in applying for spousal support, (2) ruling that Ms. Molloy was disadvantaged, (3) failing to consider money that Ms. Molloy received at the time of separation, (4) not considering the effect of an earlier application for spousal support in Ontario and (5) finding that Ms. Molloy was entitled to spousal support in any event.

He also moves for a stay, pending the decision of the Court on his appeal, of the order that he pay $800 monthly spousal support. His affidavit says that the spousal support payments “ will have a disastrous effect on my financial situation ” . [ 8 ] Ms. Molloy opposes both the amendment and the stay. The Amendment [ 9 ] At the chambers hearing, counsel for Ms. Molloy acknowledged that Ms. Molloy would suffer no prejudice from the amendment. The amendment would restyle and particularize the vague grounds that appeared in the initial Notice of Appeal.

From the perspective of the Court and both parties, it would be more efficient that the grounds be expressed formally with the benefit of proper drafting by Mr. Molloy ’ s newly retained counsel. I have no reservation in allowing Mr. Molloy ’ s motion to amend the Notice of Appeal. The amendment may be filed and served on or before March 20, 2012. The Stay [ 10 ] 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 the execution and enforcement of any judgment appealed from or grant such other relief against such a judgment or order, on such terms as may be just. [ 11 ] The test under Rule 90.41(2) remains that stated by Justice Hallett in Fulton Insurance Agencies Ltd. v. Purdy (1990), 1990

2357 (NS CA), 100 N.S.R. (2d) 341, paras 28-30, under the former Rule 62.10(2). The applicant for a stay 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: St-Jules v. St-Jules, 2012 NSCA 17, para 8; La FermeD’Acadie v. Atlantic Canada Opportunities Agency, 2009 NSCA 5, para 11; Gill v. Hurst, 2010 NSCA 104, para 10; Halifax (RegionalMunicipality) v. Casey, 2011 NSCA 69, para 11. [12] Given the judge’s findings about Ms.

Molloy’s financial situation, and the income disparity between this still married couple, inmy view Mr. Molloy does not have an arguable appeal to eliminate spousal support. But he may have an arguable case that spousalsupport could be reduced. That matter may depend on the evidence that will be in the appeal record, but is not before me on this motion.Obviously, my comments are not intended to prejudge the appeal proper. I am merely addressing a criterion that I am bound to considerfor Mr. Molloy’s motion that seeks a stay. I will proceed on the basis that Mr.

Molloy has an arguable case to reduce, but not eliminatespousal support. [13] Mr. Molloy says that, if the Court allows his appeal, Ms. Molloy would be unable to repay the spousal support that Mr. Molloyhad already paid. That, he submits, would be irreparable harm. [14] I disagree that, in the circumstances here, this risk establishes irreparable harm. The appeal hearing is scheduled for June 4,2012. Likely there will be a decision before the end of July, 2012. On that assumption, a stay issued today would suspend Mr. Molloy’spayments of $800 monthly for April through July, four months totalling $3,200.

As I have stated, in my view Mr. Molloy has noarguable case to eliminate spousal support. So the harm to Mr. Molloy from my denial of his stay would, at worst, be an overpayment ofless than $3,200. If this Court reduces Mr. Molloy’s spousal support, then Mr. Malloy could recoup any such overpayment over time bysetting off the overpayment against his ongoing spousal support obligation. [15] The balance of convenience favours Ms. Molloy. Her income is less than a quarter of Mr. Molloy’s income. No doubt $800monthly (tax deductible) will adversely affect Mr. Molloy. But that same $800 would have an impact on Ms.

Molloy that isproportionately more acute. [16] Generally, a motion for a stay of a monetary judgment will stand or fall with Fulton’s primary test, where irreparable harm andbalance of convenience are the judicial tools designed to measure the financial impact of the stay or its denial: Myatt v. Myatt, 2004NSCA 124, paras 15-17; Amica Mature Lifestyles Inc. v. Brett, 2004 NSCA 93, para 23; Gill v. Hurst, 2010 NSCA 104, paras 18-19. Fulton’s secondary test, requiring “exceptional circumstances”, is inapplicable to the purely monetary loss that Mr. Molloy cites on thismotion. [17] I dismiss Mr.

Molloy’s motion for a stay. Conclusion [18] I allow the amendment to the grounds of appeal, with the amended Notice of Appeal to be filed and served on or before March20, 2012. I dismiss the motion for a stay. The costs of both motions are quantified at $500 in total, and will be in the cause. Fichaud, J.A.