This Decision addressed an Application for Stay Pending Appeal and a Cross-Application for Security for Costs. The Parties’ Applications followed a Summary Trial that determined the division of matrimonial property, child support, and spousal support and ordered the release of funds held in trust to cover retroactive support payments. The Applicant filed a Notice of Appeal, arguing that the funds in trust would be difficult to recoup if paid out and that he would face financial hardship. The Respondent and Cross-Applicant sought Security for Costs, arguing that the Applicant had not voluntarily paid support and had the means to pay Security for Costs without it effecting his ability to appeal.

The Court acknowledged that Rule 14.48(b) provides that an application for a stay pending appeal may be heard by a single judge. Feehan J.A. confirmed that the well-established tripartite test set out in RJR-MacDonald Inc v Canada (AG), has been modified in family law cases to acknowledge the best interests of the child. The test includes determining (1) whether there is a serious issue to be argued on appeal that is neither frivolous or vexatious; (2) whether the child will suffer irreparable harm resulting from the granting or denial of the stay (in light of the best interests of the child); and (3) the balance of convenience by looking at the best interests of the child. The Court noted that the second and third parts of the test should be viewed holistically.

The Court referred to Rules 4.22 and 14.67 for the considerations for a security for costs order. The test for granting security for costs is disjunctive. Feehan J.A. stated that the applicant bears the burden, on a balance of probabilities, to establish that it is just and equitable to order security for costs or that the respondent will be unable to pay costs that may be awarded. To arrive at a just and reasonable outcome, a security for costs order is discretionary and balances the reasonable expectations of the parties with their rights.

Feehan J.A. dismissed the Application for a Stay Pending Appeal because the issues raised by the Applicant were primarily monetary and did not meet the family law modified tripartite test. The Applicant had to take steps to satisfy the retroactive and ongoing child and spousal support, even if the steps were inconvenient to him, such as working out of town or selling properties. Therefore, the Court held that the balance of convenience and interests of justice did not favour a Stay.

The Court granted the Cross-Application for Security for Costs because it was unlikely that the Respondent could enforce a Judgment against the Applicant’s assets in Alberta and the Applicant has some ability to pay a reasonable amount for Security for Costs. Feehan J.A. acknowledged that the grounds of appeal may not be frivolous or vexatious but that they did not appear particularly strong at the current stage of litigation. The Court found that an Order for Security for Costs in a reasonable amount would not unduly prejudice the Applicant’s ability to progress the Appeal and held it was just and equitable to grant the Order.