



COURT OF APPEAL FOR ONTARIO

CITATION: Nguyen v. Tran, 2018 ONCA 985

DATE: 20181204

DOCKET: M49835 (C66001)

Lauwers J.A. (Motions Judge)

BETWEEN

Nhung (Leo) Nguyen

Applicant (Respondent)

and

Linh Tran

Respondent (Appellant)

Ben Mignardi, for the appellant

Frances M. Wood, for the respondent

Heard: November 27, 2018

REASONS FOR DECISION

[1]

The appellant appeals the final order of Baltman J., dated July 12,
    2018. The order requires the appellant to transfer her interest in the
    matrimonial home to the respondent and to vacate the matrimonial home, where
    she has lived separate but apart since the separation, together with the
    couples two children. The youngest child will be 18 in April 2019.

[2]

Under a combination of r. 63.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
and r. 38(33) of
    the
Family Law Rules
, O. Reg. 114/99, the filing of a notice of appeal
    stays any provision requiring the payment of money except a provision that
    enforces a support order. Accordingly, the appellant seeks to stay the
    provisions regarding the disposition of the matrimonial home pending the appeal,
    since the automatic stay does not apply to it.

[3]

In order to obtain a stay, the applicant must establish the three
    factors imposed by
RJR-MacDonald Inc. v. Canada (Attorney General)
,
[1994] 1 S.C.R. 311. Without going into
    the details of the appeal, in my view, the appellant has put forward plausible
    grounds for the appeal.

[4]

There is a dispute about the second ground, irreparable harm. The
    respondent argues that regardless of the outcome of the appeal, the appellant
    is not going to get the matrimonial home or any ability to continue to reside
    in it, even if she is completely successful on the appeal. Therefore, she will
    have to move; so, requiring her to move sooner rather than later does not
    amount to any form of irreparable harm.

[5]

I disagree. This is a matrimonial case, in which there is a
status
    quo.
Although the children are no
    longer young, the status quo permits the continuation of existing
    relationships. It would not be appropriate for me to speculate on the outcome
    of the appeal or the outcome of any renewed negotiation process that follows an
    appeal, assuming the appellant is successful. The dynamics cannot be entirely
    predicted.

[6]

The balance of
    convenience, the third factor in the test, clearly favours the appellant
    because the living arrangements are now stable and would not be if provisions
    of the final order regarding the matrimonial home were implemented.

[7]

In these circumstances,
    I grant the stay relating to the disposition of the matrimonial home, residency
    in the home, and the division of household contents.

[8]

I remind the appellant
    that filing a notice of appeal does not relieve her of the obligation to pay
    child support in accordance with the final order.

[9]

The costs of this motion
    are reserved to the panel.

P. Lauwers J.A.


