ONCA Stays Family Appeal Where Support is Owed
In the recent Ontario Court of Appeal decision, Abu-Saud v. Abu-Saud [2020 ONCA 314 (CanLII)], the ONCA stayed a Husband’s appeal of a trial decision that dealt with the equalization and spousal support because the Husband had not complied with support obligations. The ONCA also ordered partial payment of equalization.
The parties in the case were married for 27 years in a traditional relationship. Throughout the marriage, the Wife primarily cared for the two children while the Husband earned the household income. The Husband was the sole shareholder and directing mind of the company he started, Superstar Investment Corp. (“Superstar”). The parties separated in 2015, after which the Wife brought an application seeking spousal support and equalization of net family property.
At trial, the Hon. Justice Thomas Carey of the Southwest Region (London) awarded the Wife spousal support of $2,653.00 a month, retroactive spousal support of $94,305.00, and an equalization payment of $278,316.85. These payments were secured against the Husband’s holdings in Superstar. One of the main issues at trial re equalization was the value of Superstar’s goodwill.
The Husband appealed Justice Carey’s decision on the grounds that the trial judge erred in his determination of the equalization payment owing and support. Specifically, the Husband alleged that Justice Carey should not have accepted the Wife’s expert’s evidence on the value of Superstar’s goodwill and that the equalization award should have been $150,685.22 instead of $278,316.85. He also took the position that Justice Carey should not have awarded retroactive support, or imputed him with an income of $90,000.00.
At the ONCA, the Court dealt with the Wife’s motion to adjourn the appeal. At the motion, the Wife also sought a partial lifting of the automatic stay for a portion of the equalization payment, security for costs and an extension of time to file her factum. Notably, under rule 63.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 the delivery of a Notice of Appeal automatically stays any provision of an order for the payment of money except a provision that orders support or enforcement of support.
The Wife’s motion was mainly triggered by the Husband’s conduct post-trial judgment. The Husband unilaterally decided to pay support according to what he “could afford” and chose not to pay any support arrears, retroactive support, or the higher amount of support ordered by Justice Carey. The Husband did this, notwithstanding his acknowledgment that he had the funds to pay the resulting $17,000.00 in total support arrears.
If that were not enough, six days after receipt of trial judgment, the Husband also transferred his 50% interest in the matrimonial home to his current Wife for a total consideration of $2. To add further insult to injury, he then transferred $200,000.00 out of his corporation – purportedly “not to make himself judgment proof”.
Demonstrating little patience for the Husband’s approach, the Hon. Justice Benotto wrote for the ONCA:
Compliance with an order for support is not optional. Support payments are not stayed pending appeal. If the appellant seeks relief from this requirement, the procedure is to bring a motion to stay the support. The procedure is not to decide for yourself how much to pay. This court has repeatedly admonished payors who do not pay the support pending appeal …To do otherwise ‘would be to reward his deliberate and willful misconduct.
The Court clarified that it may also stay an appeal when arrears are outstanding. The Court then refused to list the appeal for hearing until the arrears were brought up to date.
Notably, the Court cited a passage from Dickie v. Dickie, 2006 CanLII 576 (ON CA) for the principle that requiring an Appellant to comply with a support order before permitting the appeal to continue does not make the appeal pointless. This is because if the Appellant is successful, the Court can:
take into account the extent to which the support payments made have exceeded the level of support ordered on appeal.
Although neither this case nor Dickie v Dickie explains what “take into account” involves, presumably, this means that if an Appellant is successful, the ONCA will adjust the overall support arrears owed. So it is not unfair to force the support payor to pay what he feels is a higher and inaccurate level of support.
The Hon. Justice Benotto then dealt with the Wife’s request for a partial equalization payment. Citing Rule 63.01(5), the Court stated that the ONCA has the discretion to lift the automatic stay under Rule. 63.01(1). The Court stated that although Court usually looks to the factors listed in Popa v. Popa,2018 ONCA 972 when lifting an automatic stay (1. merits of the appeal; 2. need for funds, and 3. danger that the payment will not be made), this case was not like Popa. Here, the Husband acknowledged that a portion of the equalization funds was owed, and there was no dispute about the funds requested by the Wife. The Court stated that “it is just that the funds be paid now”. Justice Benotto ordered that $28,724.34 plus pre-judgment interest was payable immediately.
This decision serves as a good reminder of the importance of following court orders, even when they are being appealed. Court orders should always be taken seriously and non-compliance can have serious consequences at the appeal stage. Acting with cavalier disregard is never helpful when asking a Court to exercise discretion in your favour.