The parties were in a lengthy marriage before separating in March 2020 and have since been embroiled in acrimonious divorce proceedings. The Applicant, Ms. Scheffelmaier, sought a Stay pending the Appeal of an Order. The Order changed exclusive possession of the matrimonial property from Ms. Scheffelmaier to the Respondent, Mr. Scheffelmaier, asked that she vacate the property, and permitted Mr. Scheffelmaier to sell the property without Ms. Scheffelmaier’s consent.

A Stay could be ordered if Ms. Scheffelmaier satisfied the Court that: (i) there was a serious question to be determined on appeal, (ii) she would suffer irreparable harm if the Stay was not granted, and (iii) the balance of convenience favoured granting the Stay. The Court considered each factor.

Ms. Scheffelmaier argued that ordering her out of the home on two weeks notice was unreasonable and that she wished to keep the matrimonial home once the divorce proceedings concluded. She further alleged lack of procedural fairness and that the Chambers Judge erred by relying heavily on outdated pictures of the property. The Court found that that Ms. Scheffelmaier’s Appeal raised legitimate issues and met the threshold for further consideration.

The Court explained that irreparable harm refers to harm that cannot be remedied by money, often because damages cannot be recovered. Ms. Scheffelmaier argued that being forced to leave the rural property she has lived on for 15 years, at age 64, caused such harm. The Court agreed that selling the property without her consent could cause irreparable harm due to her emotional attachment and the unlikely possibility of reacquiring it.

Finally, the balance of convenience also favoured Ms. Scheffelmaier. It was difficult to see how Mr. Scheffelmaier, having exclusive possession and the ability to sell the land, would address a looming foreclosure action in the most cost-effective way to the parties, as argued.

In the end, the Application for a Stay pending the determination of the Appeal was granted.