Stewart v Stewart, 2023 SKCA 44

Court of Appeal for Saskatchewan Docket: CACV4162 Citation: Stewart v Stewart , 2023 SKCA 44 Date: 2023-03-22 Between: Linda Louise Stewart Applicant/Appellant (Respondent) And Lyle Eldon Stewart Respondent/Respondent (Petitioner) Before: Richards C.J.S. (in Chambers) Disposition: Application dismissed (orally) Written reasons by: The Honourable Chief Justice Richards On application from: DIV-RG-39 of 2022 (Sask KB), Regina Application heard: March 22, 2023 Counsel: James Vogel, K.C., for the Applicant Peggy Benko for the Respondent RICHARDS C.J.S. [ 1 ] This is an application for a stay pursuant to Rule 15 of The Court of Appeal Rules .

I dismissed it orally on the ground that it was unnecessary and therefore ill-founded. Given that Rule 15 has recently been amended, and that there may be some misunderstanding by the bar about how it now operates, I have decided to write this short fiat. [ 2 ] The judgment [Judgment] under appeal provides as follows: 1. THE COURT ORDERS THAT Lyle Eldon Stewart and Linda Louise Stewart, who were married on the 4th day of September, 1971, are divorced and, unless appealed, this judgment takes effect and the marriage is dissolved on the 31st day after the date of this judgment. 2.

THE COURT FURTHER ORDERS THAT the Judgment of the Divorce shall issue and that the family property issues are severed from the Divorce on the following condition: a. That 50% of the Petitioner’s pension assets be retained by the agency and/or administrator holding them presently. b.

That the 50% held back by the administrators shall not be distributed to anyone, nor any beneficiary designated other than the Respondent, Linda Louise Stewart, notwithstanding any direction, request, notice of change of beneficiary or demand, whether contractual, inter vivos or testamentary that the Petitioner, Lyle Eldon Stewart may make, until further Order of the Court.

The intention herein is that upon the Divorce Judgment becoming final, the Petitioner, Lyle Eldon Stewart will be able to dispose of the 50% not held back by this Order as he may so desire, and that the remaining 50% be held back, separate and apart from such disposition that the Petitioner, Lyle Eldon Stewart may choose to effect pending final determination of the family property and spousal support issues. 3.

THE COURT FURTHER ORDERS THAT mediation is to be undertaken, if possible, however the within Order shall not be held pending the conclusion of mediation. (Emphasis added) [ 3 ] Linda Stewart has appealed from the Judgment insofar as it speaks to the divorce and to pension assets. She argues that the King’s Bench Chambers judge made a number of errors including, for example, granting relief that was not requested of him, ordering things to be done by individuals who were not parties to the action, and dividing family property without evidence of its value. [ 4 ] Lyle Stewart is terminally ill. Ms.

Stewart is concerned that, by virtue of actions taken pursuant to the Judgment, his pension assets might be put beyond her reach before the appeal can be resolved. Among other things, she notes that, by virtue of being Mr. Stewart’s wife, she is the beneficiary under his pension plan and that the Judgment, if it is effective, changes her status in this regard. These concerns led Ms. Stewart to file a notice of application asking for an order staying the Judgment as it relates to the divorce and pension assets issues. [ 5 ] However, as is apparent from the face of the Judgment, no stay is necessary to address Ms.

Stewart’s concerns. Queen’s Bench Rule 15-102 provides that “[a] divorce judgment must be in Form 15-102”. Form 15-102, in turn, prescribes that a judgment must state “[X and Y] … are divorced and, unless appealed, this judgment takes effect and the marriage is dissolved on the 31st day after the date of this judgment”. As noted, the Judgment here is worded accordingly. [ 6 ] Ms. Stewart suggests that there is something of a conflict between Queen’s Bench Rule 15-102 and Form 15-102, on the one hand, and Rule 15 of The Court of Appeal Rules , on the other.

She says the former provide that a divorce judgment is, in effect, stayed if there is an appeal but that the latter says there is no stay. However, this reflects a misreading of Rule 15. [ 7 ] In relevant part, Rule 15 provides as follows:

15(1) Unless ordered pursuant to Subrule (3) or otherwise provided by law, the service and filing of a notice of appeal or an application for leave to appeal does not: (

a) stay the execution of the judgment appealed from; (

b) stay proceedings in the action ; or (

c) invalidate any intermediate act or proceeding taken pursuant to the judgment. …

(3) The judge mentioned in paragraph (2)(

a) or (

b) who hears an application pursuant to that subrule or who imposes a stay on the judge’s own initiative may give any directions and orders that the judge considers appropriate in the circumstances.

(4) Unless otherwise ordered, an order staying proceedings does not stay the signing and entry of the judgment appealed from or the assessment of costs under that judgment. … (Emphasis added) [ 8 ] As the highlighted portion of Rule 15 indicates, the service and filing of a notice of appeal does not effect a stay unless so ordered or unless a stay is “otherwise provided by law”. A clear example of a situation where a stay is “otherwise provided by law” is where a provision in a trial-level judgment says the judgment does not take effect if there is an appeal.

In that circumstance, the filing of a notice of appeal, i.e., the commencement of the appeal, will in effect operate to stay the judgment. Accordingly, there is no conflict or inconsistency between The Queen’s Bench Rules requirements as to the content of divorce judgments and Rule 15. They fit together quite seamlessly. [ 9 ] As indicated at the outset of this fiat, Ms. Stewart’s application for a stay was denied because it was ill-founded. The divorce and pension assets parts of the Judgment, by the terms of the Judgment itself, have not taken effect because Ms.

Stewart has initiated an appeal. [ 10 ] I leave the question of the costs that might be awarded in connection with this application to the panel that hears the appeal.