BOSKO v BOSKO, 2021 ABCA 34

SCHUTZ JA

12.36: Advance payment of costs
14.48: Stay pending appeal

Case Summary

This was Application made in an Appeal of a family law Judgment. The Appellant husband applied pursuant to Rule 14.48 for a stay of the Trial Judgment pending conclusion of the Appeal. The Respondent wife cross-applied for advance Costs to fund her participation in the Appeal. At Trial, the wife was awarded exclusive possession of the marital home.

In considering the husband’s Application, the Court noted that the test for granting a stay pending Appeal requires the Applicant to show that (i) there is a serious question to be tried, such that the Appeal is not frivolous or vexatious; (ii) there will be irreparable harm if the stay is not granted; and (iii) the balance of convenience favours granting the stay. Although the Court agreed that the Appeal disclosed a serious issue to be tried and was neither frivolous nor vexatious, it held that the husband had not adduced sufficient evidence to show that he would suffer irreparable harm if the stay were not granted, and thus failed at the second prong of the test. The Court clarified that “harm compensable in money rarely qualifies as irreparable harm”, and as such, the husband’s concerns regarding the wife’s capacity to upkeep the home and his costs of securing alternative housing did not suffice. The Court further held that the husband’s concerns regarding potential delay of the proceedings could be addressed by the imposition of a Court-approved timeline, which was put forward and subsequently approved.

Regarding the wife’s cross-Application for advance Costs, the Court held that a modest advance Costs Award was appropriate in the circumstances, having regard to the merits of the Applicant’s case and the Applicant’s need for the funds to finance the litigation. The Court awarded advance Costs in the amount of $4,000.

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