Docket: CACV23 22 Richard Conrad Propp Appellant (Respondent) - v. -, 2013 SKCA 126

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 126 Date: 2013-11-27 Between: Docket: CACV23 22 Richard Conrad Propp Appellant (Respondent) - and - Marcella Geraldine Propp Respondent (Petitioner) Before: Richards C.J.S. (in Chambers) Counsel: Drew Filyk for the appellant David Rusnak for the respondent via teleconference Application: From: DIV 03736 of 2008, J.C. of Yorkton Heard: November 27, 2013 Disposition: Allowed

Written Reasons: November 27, 2013 By: The Honourable Chief Justice Richards Richards C.J.S. [1] Mr. and Ms. Propp are involved in litigation concerning the division of family property. [2] Mr. Propp seeks an interim distribution of $100,000 from an amount of some $992,067 plus interest currently being held in theCourt of Queen’s Bench. He makes this request on the basis that he requires funds in this amount for a down payment on a house. Mr.Propp also suggests that if $100,000 is paid out to him, the same amount should be paid out to Ms.

Propp if she so requests. [3] I will not set out the complicated facts that led to the funds in question being paid into Court. Suffice it to say that they representthe proceeds from the sale of farm land in which Mr. Propp had an ownership interest. Counsel advised that, at this point, it is only Mr.and Ms. Propp who have a possible claim on the funds. [4] At trial, Ms. Propp was awarded $407,298 in the property division. Mr. Propp has appealed. He claims that the trial judge erredin granting Ms. Propp an award of that size. Mr. Propp’s appeal provoked a cross-appeal. Ms.

Propp argues that she should have beenawarded $1,320,038 plus interest. This, then, is the overall background against which Mr. Propp seeks an interim distribution. [5] It is obvious that, in light of the trial decision, Mr. Propp and Ms. Propp were each entitled to considerably more than $100,000from the monies being held in court. More specifically, Ms. Propp was entitled to $407,298 (plus some interest) and Mr. Propp wasentitled to the balance, something in the general range of $500,000. Mr.

Propp would have been in a position to have had this amountpaid out but for the fact of the stay which is in place by virtue of s. 15 of The Court of Appeal Act, 2000, S.S. 2000, c. C-42.1. Thus, ineffect, I see Mr. Propp’s application as a request to lift the stay to the limited extent of allowing $100,000 to be paid out to both him andMs. Propp. [6] The general principles governing an application to lift a stay are well established. In MacKay Construction Ltd. v. PottsConstruction Co. (1983), (SK CA), 25 Sask.

R. 81 (C.A.), the root question was discredited as being “whether theautomatic stay creates an injustice against which some relief should be given.” In Gerski v. Gerski, 2006 SKCA 66, 285 Sask. R. 121,the fundamental objective to bear in mind when considering whether to lift a stay was seen as being “to prevent injustice and to ensurethat the result is as fair and equitable as possible for all sides.” See also: Ochapowace First Nation v. Araya and Shepherd (1994), (SK CA), 123 Sask. R. 311 (C.A.). [7] In my view, the balance of justice and equity in this case tips decisively in favour of Mr. Propp.

Several considerations informmy view of the matter. First, although Ms. Propp suggests she might succeed on her cross-appeal in raising her property division awardfrom $407,000 to some $1.3 million, a preliminary and very tentative review of the file suggests that she is unlikely to be socomprehensively and totally successful. Second, and relatedly, even if two $100,000 payments are made out of the funds being held incourt, Ms. Propp could effectively double her trial award and still be able to recover all of that award from the amount held in court. Third, Mr.

Propp will be investing the $100,000 in real property in Saskatchewan. If Ms. Propp is as successful on appeal as she hopes,that $100,000 will not be beyond her reach. Fourth, there appears to be no suggestion in the history of this file that Mr. Propp is the sortof litigant who does not comply with court orders. In short, it is difficult to see any realistic threat of prejudice to Ms. Propp if the fundsare released. On the other side of the coin, Mr.

Propp is over 80 years old and seeks only to move out of an apartment into a house, albeita reasonably expensive one. [8] This case is not dissimilar in principle from other family law appeals where stays have been lifted in part to allow a spouse toaccess money or property. See: Ross v. Ross (1984), (SK CA), 37 Sask. R. 290 (C.A.); Qually v. Qually, (1987), (SK CA), 61 Sask. R. 188 (C.A.). In my view, Mr. Propp should have the relief he seeks. [9] There will be an order entitling Mr. Propp to have $100,000 paid out of the funds being held in the Court of Queen’s Bench.

Ms.Propp is also entitled to have $100,000 paid out to her if she so chooses. There will be no order with respect to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 27th day of November, A.D. 2013. “Richards C.J.S.”___________________ Richards C.J.S.