BANOVICH v BANOVIC

The Applicant husband applied for Security for Costs in the amount of $18,225 in an Appeal arising from a Summary Trial Decision regarding the division of matrimonial assets and spousal support. The Appellant wife alleges legal errors by the lower court in applying Sections 7(2)(c) of the Family Property Act, RSA 2000, c F-4.7 and 15.2 of the Divorce Act, RSC 1985, c 3 (2^nd Supp).

The Applicant argued that he would be unable to enforce an Award of Costs against the Appellant and that her Appeal is likely to fail. The Appellant argued that her Appeal has merit and posting Security for Costs prior to accessing her share of the matrimonial assets would be a financial hardship that would unduly prejudice her ability to continue the Appeal.

After applying Rules 4.22 and 14.67, and the applicable case law, Feehan J.A. held that it would not be just and reasonable to permit the Application. The Applicant will be able to collect Costs of an Appeal from the Appellant if he is successful through trust funds held by counsel or the distribution of matrimonial property. Further, Feehan J.A. concluded that the Appellant’s proposed grounds of Appeal do not appear to be frivolous or unmeritorious. As a result, the Security for Costs Application was Dismissed.