



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Stasiewski 
          v. Stasiewski,







2006 
          BCCA 53



Date: 20060112





Docket: CA033272

Between:

Deborah 
    Anne Stasiewski

Appellant

(
Plaintiff
)

And

Thomas 
    Joseph Stasiewski

Respondent

(
Defendant
)












Before:


The 
          Honourable Madam Justice Saunders




(In 
          Chambers)








Oral Reasons for Judgment




J.A.Rose, 
          Q.C.


Counsel for the Appellant




L. 
          Wold


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




12 January 2006





[1]

SAUNDERS, J.A.
:  This is an application for an order for 
    leave to amend a notice of appeal, for leave to appeal an order made by the 
    trial judge staying portions of the judgment on terms, and for a stay, pending 
    determination of this appeal, of orders relating to sale of the matrimonial 
    home.  The order in issue is the order of Mr. Justice Pitfield made on 
    the 15
th
December 2005, which in turn relates to his order 
    of the 27
th
July 2005, insofar as those orders permit the 
    sale of the matrimonial home to a third party, or permit Mr. Stasiewski 
    to purchase Ms. Stasiewskis interest in it.

[2]

The order made on 15 December 2005 is in three parts.  First, 
    Ms. Stasiewski may purchase from Mr. Stasiewski a one-half interest 
    in the matrimonial home predicated on a purchase price for the entire property 
    of $675,000, through the devices of an irrevocable offer to be made by this 
    Friday, 13 January 2006, and the deposit of some $60,789 as security 
    for costs of the trial, to be released upon the completion of the sale.  Second, 
    failing an offer from Ms. Stasiewski by this Friday, Mr. Stasiewski 
    may purchase her interest in the property upon making an irrevocable offer 
    to Ms. Stasiewski by Friday, 20 January 2006, to purchase her one-half 
    interest in the property.  Third, failing an offer by Ms. Stasiewski, 
    the property may be offered for sale to the public.

[3]

The parties separated in 2004 after a marriage of about 20 years.  
    Mr. Stasiewski is employed as a tax auditor.  Ms. Stasiewski was 
    formerly employed by the same employer, but has suffered from a malady contracted 
    at work and currently receives Workers Compensation benefits in compensation 
    for her disability which has left her unable to resume employment.  Both parties 
    have superannuation plans arising from their employment.  At trial, the proper 
    characterization of those Workers Compensation benefits was an issue, as 
    was the question of equalization of the parties superannuation plans.  Further, 
    Ms. Stasiewski claimed reapportionment of the matrimonial home.

[4]

Mr. Justice Pitfield, in his oral reasons delivered July 27, 2005, 
    considering the Workers Compensation benefits that Ms. Stasiewski receives, 
    ordered Mr. Stasiewskis superannuation plan reapportioned entirely to 
    him, and her plan entirely to her, with the result that Mr. Stasiewskis 
    superannuation plan is greater than that of Ms. Stasiewski, but she receives 
    Workers Compensation benefits.  On the issue of the house, Mr. Justice Pitfield 
    declined to reapportion the property, with the result that the parties retained 
    their presumptive one-half interest.  However, he provided 45 days in 
    which Ms. Stasiewski could offer to purchase Mr. Stasiewskis interest 
    in the home premised on the purchase price of $640,000, the value he found 
    the property had at the time of the trial.  He made no order of costs.

[5]

The parties communicated through counsel after the reasons for judgment 
    were delivered, and Ms. Stasiewski made an offer dated 18 August 
    2005 to purchase, but did not address the issue of costs.  Her offer, apparently, 
    was not accepted on the basis that, [a]ny agreement had to take into consideration 
    these amounts, with these amounts referring to costs.  On 9 September 
    2005, the trial judge ordered costs in favour of Mr. Stasiewski.  The 
    quantum of costs was not settled until later in 2005, by which time Ms. Stasiewski 
    had new counsel, who has had carriage of the appeal and the stay applications.  
    Indeed, at the time of the order of costs, the trial judge recognized that 
    Ms. Stasiewski may be in the process of changing counsel, although it 
    appears that counsel had not had the opportunity to make submissions to the 
    trial judge.  The amount agreed now for the costs is $54,000.

[6]

In his reasons for judgment delivered in July 2005, the trial judge 
    said this concerning the opportunity to purchase:

. 
    . . I am going to order that the plaintiff shall have 45 days within 
    which to conclude a binding, unconditional agreement for the purchase of the 
    defendants interest in the property, failing which the property shall be 
    sold.

[7]

Clearly no binding unconditional agreement for the purchase of the 
    defendants interest in the property within the meaning of that passage was 
    concluded, leading to the application by Ms. Stasiewski for a stay.  
    I do not have a copy of the December 15, 2005 reasons for judgment making 
    the stay order, but a draft of the order is before me.  The parties agree 
    that a partial stay was ordered in the terms I have outlined, but changing 
    the value of the house from the amount of $640,000 found to be its value at 
    trial, to $675,000.  The result is an increase in the purchase price for Ms. 
    Stasiewski of Mr. Stasiewskis interest by one-half of that amount, $17,500.  
    Further, the trial judge required the posting of security for costs in the 
    amount of $60,789 (that amount is now agreed at the $54,000), to be paid out 
    upon completion of the sale.

[8]

The primary jurisdiction to order a stay of an order made under the
Family Relations Act,
R.S.B.C. 1996, c. 128, is in the 
    trial court.  Section 14 of that Act provides:

14.       
    Despite any other enactment, if an order made under this Act is appealed, 
    unless the court that made it otherwise orders, the order remains in full 
    force and effect until the determination of the appeal.

[9]

In
Bennett v. Bennett
,

2002 BCCA 580, Mr. 
    Justice Donald considered that section in the context of an application for 
    leave to appeal a decision refusing a stay of proceedings pending an appeal 
    of an order distributing family assets on an equal basis, and an order staying 
    a refusal to grant a stay until the main appeal was decided.  In the course 
    of dismissing the application, he said:

[12]      
    I do not rest my decision on jurisdiction because there may arise a case in 
    which this Court will have to act on an obviously wrong exercise of the Supreme 
    Court's stay jurisdiction.  This is not such a case.  Here Mr. Justice Wilson 
    gave careful consideration to the matter and concluded that he should not 
    interfere with the liquidation of the assets.  With the benefit of hearing 
    eight days of trial he was well placed to decide that the parties could not 
    afford to hold on to the assets pending the appeal because their creditors 
    were closing in.  Since the
Act
gives exclusive jurisdiction 
    to the Supreme Court in this area, I do not think the legislature's intention 
    should be finessed by means of an appeal of this kind.  No extraordinary circumstances 
    or egregious error have been shown to override the trial judge's decision 
    to refuse a stay.

[10]

The unusual framing of Ms. Stasiewskis application today to include 
    a request for an order for leave to appeal the stay, and for an order amending 
    the notice of appeal to include that issue is directed to the sliver of jurisdiction 
    that exists in this Court in respect to staying orders made under the
Family 
    Relations Act
which is discussed in
Bennett v. Bennett
.  
    The real object of Ms. Stasiewskis application, however, is a stay in 
    respect of the sale of the matrimonial home.

[11]

Notwithstanding the able submissions of Mr. Rose on behalf of 
    Ms. Stasiewski, I am not persuaded that this is one of those cases described 
    by Mr. Justice Donald as extraordinary, or demonstrating egregious error.

[12]

The parties treated the situation before Mr. Justice Pitfield in December 
    2005 as one in which no binding agreement had been made, and I do not understand 
    Ms. Stasiewski to contend that she did that which she was required to 
    do under the terms of the July 2005 order to buy-out Mr. Stasiewski.  
    That being so, and apart from the question of the order as it relates to the 
    costs, I am of the view that the decision of December 15, in setting 
    out terms by which the parties could buy each other out failing which the 
    property could be sold to a third party, was within the discretion given to 
    the trial judge by s. 14.  That discretion included the discretion to 
    refuse a complete stay, or to impose terms.

[13]

Mr. Justice Donald referred to exceptional circumstances, or egregious 
    error as a basis for this Court to impose its own stay.  Not having the reasons 
    for judgment of December 2005, I am unable to conclude that an error of principle 
    or law in the exercise of discretion (apart from the matter of costs to which 
    I will come), is present so as to justify an order from this Court in terms 
    different from the existing order of the Supreme Court of British Columbia.  
    As to the circumstances, Ms. Stasiewski refers to the disruptive effect 
    that either Mr. Stasiewskis or a third partys purchase of the property 
    will have upon her and her son, now in Grade 12, if they are required 
    to move from their present home.  This is a serious consequence, and no doubt 
    it was the reason Mr. Justice Pitfield first provided 45 days to enable 
    her to buy-out Mr. Stasiewski.  It also is reflected in the first opportunity 
    to purchase provided in the December 2005 order falling to Ms. Stasiewski.  
    By itself, however, it is not, in my view, an exceptional circumstance that 
    should be reflected in a stay from this Court.  Indeed, the weight accorded 
    this consideration is the sort that one would expect from a trial judge, who 
    has the best view of the circumstances after having dealt with the evidence 
    adduced before him.

[14]

Ms. Stasiewski says that the increase in the purchase price from 
    one based upon the value of $640,000 to one based upon the value of $675,000, 
    along with the requirement that costs be paid as the price of purchasing Mr. Stasiewskis 
    interest, justifies my interference in this issue.  The increase in price, 
    however, reflects the increased value of the property were the parties to 
    sell it to a third party.  Given that the original 45 days has passed 
    after which the property could be sold, and that there was evidence before 
    Mr. Justice Pitfield as to the present market value of the property, 
    I consider that imposition of that term does no more than put Mr. Stasiewski 
    in the position he would be in were the property sold to a stranger, and thus 
    does not demonstrate a circumstance of error which justifies a stay from this 
    Court.

[15]

I am of a different view, however, on the costs aspect of the partial 
    stay.  I do not consider the order for costs to be one made under the
Family 
    Relations Act
.  Rather, it was an order made under the
Rules of 
    Court
, including the Rule relating to costs consequent upon offers to 
    settle, a rule from which Mr. Stasiewski has benefited.   As I do not 
    see the costs order as within s. 14, I consider that I have the capacity 
    to order a stay of execution of the order for costs, in the terms I consider 
    appropriate.

[16]

The question is, then, whether I should order a stay of execution of 
    the order as it relates to the costs.  First, I would observe (as I have said 
    already) that the amount agreed by the parties to be owing for costs is $54,000.  
    Apart from that modification, in my view the present order should be modified 
    in this fashion.  While recognizing the trial judges intention that the amount 
    of costs be secured as they would be from the proceeds of sale of the property 
    to a third party, the aspect of payment out upon completion does not further 
    that objective.  In the circumstances, and given the progress made by the 
    parties towards scheduling the appeal and the nature of the issues raised, 
    any sum posted as security for costs should await payment out upon determination 
    of the appeal, and I would so order.

[17]

I recognize Ms. Stasiewskis desire to maintain the status quo 
    pending the appeal.   However, the legislature has said expressly that such 
    issues are to be determined by the trial judge who had the advantage of seeing 
    the parties, and who understands more completely than can a judge in this 
    Court in chambers, the effect of an order staying any part of the judgment 
    upon the balance struck by the overall order, and upon the parties.

[18]

Ms. Stasiewski also seeks an order permitting her to amend her 
    notice of appeal and for leave to appeal the terms of the partial stay.  I 
    do not have sufficient material before me on which to find that an appeal 
    of the stay order has sufficient merit to justify an order for leave to appeal.  
    Accordingly, I would not make either of those orders at this time, but I would 
    reserve to Ms. Stasiewski her right to renew those applications if, upon 
    receipt of the reasons for judgment, she desires to pursue those issues on 
    appeal.  Those aspects of the application are, therefore, adjourned.

[19]

On the application for a stay, the application is allowed only to the 
    extent I have indicated in respect of the costs, that is, in the event Ms. Stasiewski 
    desires to purchase the property within the terms of the stay now in existence, 
    the sum, which is the amount agreed by counsel of $54,000, shall be posted 
    as security for costs, as may be agreed by counsel or failing agreement, in 
    court, to be paid out upon determination of the appeal.

The Honourable Madam Justice Saunders




