Greckol JA

4.22: Considerations for security for costs order
14.48: Stay pending appeal
14.67: Security for costs
14.68: No stay of enforcement

Case Summary

Mr. Skolney (“Skolney”) and Ms. Nisha (“Nisha”), entered into a Prenuptial Agreement prior to their marriage (the “Agreement”). After their divorce, the Agreement was the subject of a Trial where the Judge agreed with Skolney that the Agreement was valid and enforceable. Nisha appealed the Decision and Skolney applied for Security for Costs at the Court of Appeal. Nisha opposed the Security for Costs Application and cross-applied for a Stay of Execution of the underlying Trial Judgment and the Costs awarded therein.

Greckol J.A. stated that a single Appeal Judge may award Security for Costs in accordance with Rule 14.67(1) and Rule 4.22. Rule 4.22 requires the Court to consider, among other things: whether it is likely the Applicant will be able to enforce an Order or Judgment against assets in Alberta; the ability of the Respondent to pay the costs award; the merits of the underlying Action; and whether the payment of a costs award would unduly prejudice the Respondent’s ability to continue the Action. Justice Greckol noted that concerns regarding a party’s ability to pay costs coupled with modest prospects of success on appeal have been sufficient to justify granting an Application for Security for Costs.

Greckol J.A. considered each of the factors as they related to the facts at issue, and concluded that it was not proven that Nisha’s debts exceeded her assets or that she would be unable to pay the Costs of an Appeal if unsuccessful. On this basis, Her Ladyship declined to grant Skolney’s Application for Security for Costs.

Nisha cross-appealed for a Stay of Execution of the $118,402.78 Judgment awarded against her at Trial. Greckol J.A. stated that Rule 14.68 provides that filing an appeal does not stay enforcement of the decision under appeal unless otherwise ordered under Rule 14.48. Under these Rules, Justice Greckol noted that, to obtain a Stay pending Appeal, Nisha was required to establish that her Appeal raised an arguable issue or that she would suffer irreparable harm if the Stay was not granted. Greckol J.A. found that Nisha would suffer irreparable harm if the Stay was not granted. In particular, Nisha’s right to access the Court process and appeal the underlying Judgment would be compromised. Additionally, Her Ladyship observed that it was not certain that Nisha’s Appeal had no reasonable possibility of success. Justice Greckol concluded that, given the large disparity of resources between the two parties, the balance of convenience favored granting a Stay. Nisha’s Cross-Application was granted.

View CanLII Details