The Applicant applied under Rule 14.48 for a Stay of enforcement pending Appeal of an Order which, inter alia, would allow the sale of her matrimonial home by her ex-partner pursuant to a post-nuptial agreement.

The Court applied the tripartite test set out in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, which requires that the Applicant demonstrate (1) a serious issue to be tried; (2) that irreparable harm will arise if the Stay is not granted; and (3) that the balance of convenience favours granting the Stay.

The Applicant argued that the Respondent lacked capacity to terminate the marriage, and therefore the marriage was never terminated. Termination of the marriage was required for the post-nuptial agreement to be enforced and the home to be sold. However, the Applicant never sought a ruling on the Respondent’s capacity. The Chambers Judge found there was no serious issue to be tried regarding the Respondent’s capacity, and Justice Antonio found this was not an error.

The Applicant also argued that irreparable harm would result if a Stay was not granted, because she would be rendered homeless. No evidence of her finances was put before the Court and Antonio J. found that irreparable harm would not arise without a Stay. The Application was therefore dismissed.