Lockerby v. Lockerby, 2016 NSCA 63

Nova Scotia Court of Appeal Citation: Lockerby v. Lockerby, 2016 NSCA 63 Date: 20160802 Docket: CA 449578 Registry: Halifax Between: Douglas Bruce Lockerby Appellant v. Ero Anna Lockerby Respondent Judge: Justice Cindy A. Bourgeois Motion Heard: July 28, 2016, in Halifax, Nova Scotia in Chambers Held: Motion for stay dismissed Counsel: Mr. Douglas Lockerby, on his own behalf Ms. Ero Lockerby, on her own behalf Decision: [1] The parties were divorced in September, 2010.

A Corollary Relief Order was issued at the same time, addressingarrangements pertaining to their four children, and property issues. [2] The CRO was varied at least once prior to a Variation Order being issued February 27, 2016. That latest order is the subject ofan appeal brought by Mr. Lockerby. He has further filed a motion seeking a stay pending appeal. In the course of the motion hearing, itbecame apparent that Mr.

Lockerby was, as part of his request for a stay, requesting this Court order a return of child support he paidpursuant to the challenged order. [3] At the conclusion of the hearing, I advised the parties that the motion for stay was dismissed, with reasons to follow. Theseare they. Law [4] The filing of a Notice of Appeal does not automatically stay the order of the court below. A motion must be made by a partyseeking that reprieve. Civil Procedure Rule 90.41 provides:

(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. [5] The test this Court employs when considering a motion for stay is well established. In Fulton Insurance Agencies Ltd. v.Purdy (1990), (NS CA), 100 N.S.R. (2d) 341 (C.A.), the court set out that an applicant must show: 1.

There is an arguable issue raised on appeal, denial of the stay would cause irreparable harm and the balance of conveniencefavours the applicant; OR 2. There are exceptional circumstances which justify the granting of a stay.

Analysis [6] The material presently before the Court is limited. I have reviewed the Notice of Appeal which attaches the order beingchallenged, and two others which preceded it. I have also reviewed the affidavit of Mr. Lockerby filed in support of the motion. Thereis, as of yet, no transcript filed of the hearing before Justice Cormier or her oral decision rendered in November, 2015. Is there an arguable issue? [7] The first inquiry in the Fulton test was described by Saunders, J.A. in Federated Life Insurance Company v.

Fleet, 2008NSCA 90, as follows: [19] At this stage the Chambers judge does not delve into the merits of the appeal. Rather, the inquiry focusses on whether the noticeof appeal contains realistic grounds which, if established, could be of sufficient substance to persuade a panel of this court to allow theappeal. Lienaux et al v. Toronto-Dominion Bank, 1994 NSCA 237 , 137 N.S.R. (2d) 150 (C.A.); Westminer, supra; andWhitewood v. Austin, (NS CA), 109 N.S.R. (2d) 290 (C.A.). [8] In his Notice of Appeal, Mr.

Lockerby alleges the trial judge made determinations on issues not put before her; madeoverriding errors of fact; and materially changed her decision from the oral version to that contained in the issued order. I am not toassess the merits of the grounds of appeal, but rather consider whether an arguable issue has been raised. I am satisfied Mr. Lockerbyhas met that requirement. Is there irreparable harm, should the stay not be granted? [9] Mr. Lockerby has the burden to establish that irreparable harm would result, should a stay of the order not be granted.

Hechallenges the trial judge’s conclusion with respect to the amount of child support he has been ordered to pay Ms. Lockerby. The ordercontained four time frames in which the amount of child support payable in relation to the children were calculated. The paymentsvaried significantly due to the circumstances of the children during the respective time frames. Only the first three time frames arerelevant for the purpose of this motion. [10] The order directed that from December 1, 2015 to April 1, 2016, Mr. Lockerby was required to pay Ms.

Lockerby $53.00 permonth; from May 1, 2016 to August 1, 2016 he was required to pay $1,075.00 per month, and starting September 1, 2016, Ms. Lockerbywould commence payments to Mr. Lockerby of $326.00 per month. He has paid all of the child support as ordered, other than his final payment to Ms. Lockerby of $1,075.00 due on August 1st. In seeking the stay, he wants to be relieved of the final payment of $1,075.00,and he has also asked this Court to re-calculate the amount of child support he should have paid since December 1, and order Ms.Lockerby repay that amount to him.

He asserts the repayment is in excess of $5,000.00. [11] In National Bank Financial Ltd. v. Barthe Estate, 2013 NSCA 127, Justice Fichaud had this to say about “irreparable harm”: [16] In RJR – MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, at p. 341, JusticesSopinka and Cory for the Court said that irreparable harm “is harm which either cannot be quantified in monetary terms or which cannotbe cured, usually because one party cannot collect damages from the other”. [17] Wright v.

Nova Scotia Public Service Long Term Disability Plan Trust Fund, 2006 NSCA 6, says: [12] Generally, if the judgement is monetary, the appellant (applicant for a stay) can afford to pay and the respondent can afford torepay, there is no irreparable harm. But a real risk that the respondent would be unable to repay may establish irreparable harm. [citations omitted] [12] In my view, the evidence and submissions presented by Mr. Lockerby fall far short of establishing irreparable harm. AlthoughMr. Lockerby has apparently had difficulty in the past receiving timely support payments from Ms.

Lockerby, giving rise to agarnishment of her wages in 2010, I am not satisfied there is a significant risk that any funds this Court may find owing to him at theconclusion of the appeal would remain unpaid. Ms. Lockerby has been employed in excess of 20 years with the same employer, andenjoys a healthy income (noted to be $70,000 in the order under appeal). She would, if necessary, be subject to garnishment or otherenforcement mechanisms. Collection efforts may be inconvenient or delayed, but such does not constitute “irreparable harm”. [13] In his materials, Mr.

Lockerby argued that a return of the alleged overpayment in advance of the appeal would permit him toassist with his children’s post-secondary education and other expenses. Mr. Lockerby’s reported income in 2015 was $158,000.00. I donot accept that the sum being sought on this motion as a repayment of support already paid, would be significant enough that it wouldplace Mr. Lockerby or his children in financial peril if it was not received until the outcome of appeal. Further, staying the remainingpayment of $1,075.00 owing to Ms.

Lockerby under the order under appeal cannot be said to be necessary to avoid irreparable harm. Balance of convenience [14] I am not satisfied that the balance of convenience favours Mr. Lockerby. Given that the most significant aspect of the relief heis claiming would involve Ms. Lockerby repaying in excess of $5,000.00 in funds which she has already received for child support on thebasis that this Court might find the trial judge erred in making the calculations, the balance of convenience favours Ms.

Lockerby. [15] Finally, there is nothing in the materials presently before me which would constitute an “exceptional circumstance” justifying astay of the order under appeal. Conclusion

[ 16 ] Mr. Lockerby has not met the burden to justify a stay pending appeal. The motion is dismissed. Bourgeois, J.A.