



COURT OF APPEAL FOR ONTARIO

CITATION: A.A. v. Z.G., 2016 ONCA 660

DATE: 20160907

DOCKET: M46831 (C60864)

Feldman, Simmons and Lauwers JJ.A.

BETWEEN

A.A.

Applicant (Appellant)

and

Z.G.

Respondent (Respondent)

AND BETWEEN

S.A.

Plaintiff (Appellant)

and

A.A. and Z.G.

Defendants (Respondents)

Harold Niman and Deborah MacKenzie, for the moving party
    Z.G.

William Friedman, Judy Hamilton and Mark A. Russell, for
    the responding party A.A.

Heard: August 24, 2016

ENDORSEMENT

[1]

The respondent Z.G. brought a preliminary motion before the court asking
    the court not to hear the appellant A.A.s appeal while he has not complied
    with the orders of the trial judge respecting the payment of spousal support
    and posting security for future spousal support payments. As per rule 63.01(1)
    of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194, such
    orders are not automatically stayed by an appeal. Nor did A.A. move for a stay
    of all or a part of the orders pending appeal, pursuant to rule 63.02(1).

[2]

This court has addressed the issue of non-compliance with family law
    judgments pending appeal in the cases of
Brophy v. Brophy

(2004),
    45 R.F.L. (5th) 56 (C.A.);
Dickie v. Dickie

(2006), 78 O.R. (3d)
    1 (C.A.), revd 2007 SCC 15, [2007] 1 S.C.R. 346 approving dissenting reasons
    of Laskin J.A. on this point; and
Murphy v. Murphy
, 2015 ONCA 69, 56
    R.F.L. (7th) 257. Most recently in
Murphy
, the court refused to hear
    the submissions of the responding party who was in default.

[3]

In
Brophy
in 2004, the court discussed the alternatives when
    faced with this situation. One is to dismiss the appeal, another to adjourn
    pending compliance with the trial order. Although the court in that case then
    determined that it did not matter because there was no merit to the appeal, in
    our view, it is no longer the best practice to proceed in that way.

[4]

In our view, where an appellant wishes to be relieved of his or her
    trial ordered obligations pending appeal, the proper approach is to bring a
    stay motion where the circumstances can be brought before the court. If that is
    not done, then although the court may still hear the appeal in circumstances
    the court feels require that approach, the court will normally not hear the
    appeal until the trial order has been complied with.

[5]

In this case, the court is not prepared to hear the appeal until A.A.
    has complied with the support orders made at trial. The appeal is adjourned
    until September 29, 2016 on the condition that the A.A. performs the following
    as ordered by the trial judge: (1) pay the arrears of support in the amount of
    $287,462.00, (2) post a letter of credit for future spousal support in the
    amount of $585,000.00, and (3) put in place a life insurance policy on his life
    payable to the wife for that amount.

[6]

Costs of this motion to be determined as part of the costs of the
    appeal.

[7]

As the appellant S.A. paid the amounts owing for costs prior to the
    appeal, the court proceeded to hear his appeal with regard to the mortgage, and
    reserved its decision.

K. Feldman J.A.

Janet Simmons J.A.

P. Lauwers J.A.


