J. DIV A.D. 1997 236 J.C.Y. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: STELLA HLYNSKI and MICHAEL HLYNSKI B. Banilevic for the petitioner S. Stradecki for the respondent FIAT PRITCHARD J. July 8, 1998 [1] On May 12, 1998 delivered judgment under which exclusive possession and ownership of the matrimonial home was granted to the petitioner, Stella Hlynski ("Stella"). At trial, both Stella and her husband Michael Hlynski ("Mike") had been seeking an order for exclusive possession of the matrimonial home. At the time of the trial, they were leading separate lives but under one roof as neither of them would vacate the home. [2] Stella is 71 years of age and Mike is 77 years of age. Given Mike's age, the court did not want to specify date that he had to move from the matrimonial home. It was hoped that satisfactory alternate arrangements could be made within reasonable time to avoid the potential of Mike having to make interim move to satisfy the time limit in court order when his preferred accommodations might be available shortly thereafter. Because of this concern, the final paragraph of the judgment reads: "[18] The parties have been married for over 25 years and are now senior citizens. Although this Court has ordered that Stella is entitled to exclusive possession of the matrimonial home, it is expected that counsel will assist the parties in determining reasonable time period for Mike to move from the matrimonial home. If necessary, the court is prepared to provide directions in that regard." [3] By letter dated June 9, 1998, Stella's counsel advised the court that Mike would not leave the matrimonial home and that further directions from the court would be required. The matter was then scheduled to be heard on June 19, 1998. In the meantime, notice of appeal of the judgment was filed on behalf of Mike. [4] On June 19, 1998, counsel for Mike took the position that with the filing the notice of appeal, this court became functus. Counsel for Stella did not agree and argued that notwithstanding the filing of the notice of appeal, this court could still proceed to provide the requested directions. [5] The issue resolves around the interpretation ofsubclauses (1) and (4) of Rule 15 of the Court of AppealRules which provide: "15(1) Unless otherwise ordered by the judge appealed from or by judge, the service and filing of notice of appeal does not stay the execution of judgment or an order awarding mandamus, an injunction, alimony, or maintenance for spouse, child or dependant adult. Unless otherwise ordered by judge, the service and filing of notice of appeal stays the execution of any other judgment or order pending the disposition of the appeal. (Forms 5a and 5b) 15(4) Where judgment or order is stayed pending an appeal, all further proceedings in the action, other than the issue of the judgment and the taxation of costs under the judgment, are stayed, unless otherwise ordered." [6] Stella argues that the order for exclusive possession is an injunction and therefore it is not stayed by the notice of appeal. Alternatively, she argues that the giving of directions by this court as contemplated by the judgment itself would not constitute the taking of any "execution of the judgment" or the taking of any "further proceedings in the action" and therefore, would not contravene Rule 15. [7] No caselaw in support of the position of eitherparty could be found. The issue as to whether Rule 15 operates to stay an order of exclusive possession was raised in Young v. Young, 1986 CanLII 3216 (SK CA), R.F.L. (3d) 314, but not decided. also find it unnecessary to decide the issue. Although it may be arguable that in the circumstances of this case the giving of the requested directions would not contravene Rule 15, am no longer prepared to do so. The matter is nowbefore the Court of Appeal and unless directed by it to thecontrary, all applications herein should be made to thatCourt. J.L.G PRITCHARD, J.
FIAT. Exclusive possesson and ownership of the matrimonial home was granted to the petitioner in May 1998. At the time of the trial they were leading separate lives but under one roof as neither would vacate the home. Given the respondent's age (77) the court did not want to specify a date that he had to move from the home. He had not left the home and the matter was scheduled to be heard June19/98. In the meantime a notice of appeal of the judgment was filed on behalf of the respondent. At issue was the interpretation of ss(1) and (4) of s15 of the Court of Appeal Rules. The respondent's counsel took the position that with the filing of the notice of appeal this court became functus. The petitioner argued the order for exclusive possession is an injunction and therefore is not stayed by the notice of appeal. Alternatively that the giving of directions as contemplated by the judgment itself would not constitute the taking of any 'execution of the judgment' or the taking of any 'further proceedings in the action' and therefore would not contravene Rule 15. HELD: All applications should be made to the Court of Appeal as the matter was now before that court. No case law could be found in support of either party. It was unnecessary to decide the issue as to whether Rule 15 operates to stay an order of exclusive possession.