The Applicant applied for a Stay pending Appeal of an Order releasing $223,726.50 to the Respondent in respect of the net proceeds from the sale of their family home (the “Underlying Order”) and, in the alternative, sought an Order setting the disputed amount of $83,769.23 (the “Disputed Amount”) in trust, pending the outcome of the Appeal. The Underlying Order was granted in response to an Application to interpret a Consent Order that determined how the proceeds of the sale of the family home would be distributed between the parties (the “Consent Order”). 

The Court noted that the exercise of the Court’s discretion to grant a Stay pending Appeal pursuant to Rule 14.48(b) is guided by a three-part test, which requires that (1) there is a serious question to be tried; (2) there will be irreparable harm if the Stay is not granted; and (3) the balance of convenience favours granting the Stay.

The Court set out that an Appeal presents a serious issue if it is not frivolous or vexatious and determined that the Applicant’s arguments asserting that the Chambers Judge erred in interpreting how the Consent Order should be applied had sufficient merit to satisfy the first element of the test.

With respect to the second element of the test, the Court noted Court reluctancy to grant Stays for money judgments and set out that the Applicant needed to establish a reasonable prospect that the Respondent would not be able to repay any amount ordered on Appeal. The Court concluded that there was a reasonable prospect that the Respondent would not be able to repay any amount ordered on Appeal.

With respect to the third element of the test, the Court rejected the Applicant’s assertion that because the Respondent earned a formidable wage and would, therefore, not be inconvenienced by an Order restraining the entire amount of the sale proceeds. The Court, in any event, found that that the balance of convenience was satisfied by granting the alternate relief sought by the Applicant.

The Court accordingly granted the Application in part by determining that the Disputed Amount was to be held in trust pending the outcome of the Appeal, and interest in respect of the restrained amount, was to be accounted for, according to the terms of the Consent Order.