Morin v Matheson, 2017 SKCA 80

Court of Appeal for Saskatchewan Docket: CACV3105 Citation: Morin v Matheson, 2017 SKCA 80Date: 2017-09-26Between:Noel MorinApplicant(Applicant/Respondent)AndCarla MathesonRespondent(Respondent/Petitioner)Before: Caldwell J.A. (in Chambers)Disposition: Application dismissedWritten reasons by: The Honourable Mr. Justice CaldwellOn Application From: QB 04129 of 1992, Prince AlbertApplication Heard: September 18, 2017Counsel: John Benesh for the Applicant Neil C.

Raas for the Respondent Caldwell J.A. [1] Noel Morin seeks an order pursuant to The Enforcement of Maintenance Orders Act, 1997, SS 1997, c E-9.21, s 57(3),staying a notice of continuing seizure and notice of arrears pending the determination of his appeal against the dismissal of an applicationto set aside those notices. [2] In July 2016, Mr. Morin brought an application to vary his child support and spousal support obligations under a 1992judgment. The result of which was that the Court of Queen’s Bench terminated Mr.

Morin’s ongoing obligations to pay spousal and childsupport but set over for trial issues regarding cancellation of arrears, quantum of arrears and terms of payment. Carla Matheson allegessome $345,000 in spousal and child support arrears is due and owing by Mr. Morin under the 1992 judgment. [3] The parties attended a pretrial conference in December 2016, but were unable to resolve these issues. There seem to havebeen delays on both sides. However, in the course of this, Ms. Matheson served the notices of continuing seizure and arrears on Mr.Morin’s employer. Mr. Morin sought to suspend Ms.

Matheson’s enforcement efforts, but his application was dismissed. He now seeksan interim stay of those notices, pending determination of his appeal. [4] Turning to Mr. Morin’s interlocutory request of this Court, there appear to be a number of barriers to the relief he seeks. Tostart, s. 57(3) of The Enforcement of Maintenance Orders Act, 1997 provides that “[a]n order under appeal remains in force pending thedetermination of the appeal, unless the court appealed to otherwise orders” [emphasis added].

Empowering language such as this hasbeen interpreted as requiring that a panel of the Court exercise the power so granted: see, generally, The Honourable Stuart J. Cameron,Civil Appeals in Saskatchewan: The Court of Appeal Act & Rules Annotated, 1st ed (Regina: Law Society of Saskatchewan Library,2015). That is, s. 57(3) places the power to stay the effect of an order beyond the authority of a single judge of this Court sitting inChambers. In support of this

interpretation, I observe that s. 57(2) draws a distinction between the Court of Appeal and “a judge of thatcourt”; whereas s. 57(3) does not. [5] Also, to the extent that s. 57(3) addresses the imposition of a stay of an order pending appeal, it arguably supplants Rule15(1) of The Court of Appeal Rules in respect of that order. Regardless, as the Court of Queen’s Bench has dismissed Mr. Morin’sapplication, there would seem to be no lower court order upon which to impose a stay of execution under Rule 15(1) in any event. [6] In effect then, this leaves Mr.

Morin asking this Court for something in the nature of injunctive relief prohibitingMs. Matheson from pursuing enforcement under the notices of continuing seizure and arrears.

A Chambers judge of this Court has thepower to grant injunctive relief so as to preserve the status quo and prevent the frustration of an appeal: Beare v Kirby Enterprises Inc.,2013 SKCA 44, 414 Sask R 66; Taylor v Eisner (1989), (SK CA), 80 Sask R 84 (CA). [7] However, I am not persuaded the circumstances of this matter satisfy the three-part test under Manitoba (A.G.) vMetropolitan Stores Ltd., (SCC), [1987] 1 SCR 110, which applies where the Court faces a request of this nature: Kim vUniversity of Regina (1990), (SK CA), 85 Sask R 166 (CA).

I have very little evidence upon which to assess Mr.Morin’s request and I make no comments on the merits of his appeal. I conclude Mr. Morin’s application must be dismissed chieflybecause he has not established that he will suffer irreparable loss if the notices of continuing seizure and arrears remain in effect pendingthe hearing of his appeal, which should be a relatively short period of time. [8] The application is dismissed. I leave costs to the panel that hears the appeal. “Caldwell J.A.” Caldwell J.A.