nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 31 Date: 20040309 Between: Docket: 906 [J.D.L.] Appellant (Respondent) [T.E.T.] Respondent (Applicant) Before: Jackson J.A. (in Chambers) Counsel: E.F. Anthony Merchant, Q.C. for the Applicant (Respondent) Tiffany M. Paulsen for the Respondent (Appellant) Appication: From: FLD 463 of A.D. 1998, J.C. of Saskatoon Heard: March 5, 2004 Disposition: Dismissed Written Reasons: March 9, 2004 By: The Honourable Madam Justice Jackson JACKSON J.A. [1] On this application to lift the stay imposed by Rule 15 on the judgment of Klebuc J. dated February 25, 2004, I decline to do so for these reasons. [2] believe this case is more like Faber v. Retzlaff,[1] Fiacco v. Fiacco[2] and Fick v. Fick [3] than Latsay v. Latsay,[4] Kuhn v. Bitternose,[5] Burke v. Burke[6] and Murray v. Murray.[7] In the former cases, the chambers judge determined that the best interests of the children required the status quo to be maintained. reach the same conclusion in this case. [3] While father’s counsel argues that the delay since interim reasons were filed on December 4, 2003 has resulted in new status quo, there has been one occasion only during that period when the children did not have access to both parents in any six-day period (leaving aside the January vacation which appears to be part of the status quo). This is to be contrasted with the access proposed by the father for the upcoming two months which would see the children not having overnight access, or indeed, any access, to their mother during four six-day periods until the appeal is heard. [4] note also that my decision parallels that of Gerwing J.A. who decided on February 25th, on an interim basis, prior to the final reasons being filed, not to lift the stay, and to maintain the schedule existing prior to the decision under appeal. As it turns out, final reasons were filed that day, but because notice of appeal in relation to those reasons was filed almost immediately, Wright J.’s order came into effect and has been in effect for the past two weeks. [5] Accordingly, the parties are to be governed by the order of Wright J. unless otherwise agreed and until further order. For greater clarity, they are now in week no. as described in that order. [6] Under the order of Wright J., $600.00 maintenance is payable by the father on the first of each month. Klebuc J. did not order either the father or the mother to pay maintenance. The judgment roll “vacates” the order of Wright J. [7] Since have refused to lift the stay, the immediate question is the effect of my order on the obligation to pay maintenance. The first issue that arises in considering this question is whether it is appropriate for me to interpret the effect of my order declining to lift the stay. [8] Since oral argument, when the mother assumed that maintenance would be paid, the father’s counsel filed detailed brief arguing that staying the execution of Klebuc J.’s judgment does not revive the prior maintenance order and that Court of Appeal chambers judge does not have the authority to make such an order. [9] My decision reviving the custody and access provisions in place prior to Klebuc J.’s order gives the mother custody of the children for slightly more than 50% of the time. This raises the question as to whether she has sufficient resources to care for these children appropriately. Given all the circumstances of this case, it appears that Wright J. was of the view the mother did not when she imposed the maintenance order of $600.00. [10] While a chambers judge acting under section 20 of The Court of Appeal Act[8] may not have the independent authority to make a maintenance order, a chambers judge has the authority to stay a judgment in its entirety in the Court of Queen’s Bench in certain cases as long as doing so does not decide the appeal. On this point see the dicta in Re Blackwoods Beverages Limited et al.[9] and International Harvester v. Baschuk.[10] [11] The fact that we are dealing with relatively short period of time cannot be determinative of whether maintenance should be payable particularly in light of Wright J.’s order. Accordingly, the decision of Klebuc J. is stayed, which leaves the order of Wright J. in place. This decision leaves the effect of stay of execution in case such as this one for consideration on another day, but nonetheless maintains the existing maintenance obligation. The father is to pay $600 maintenance for March 1st as soon as is reasonably possible and for April 1st on that day. [12] The mother is directed to file her appeal book and factum 15 days after receiving the transcript (which should be March 15, 2004 or shortly thereafter). The father is directed to file his factum 15 days after receiving the mother’s factum. The appeal is fixed for hearing on Monday, May 3, 2004. [13] Costs are left to the division of the court hearing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 9th day of March, A.D. 2004. Jackson J.A. [1](1986), 1986 CanLII 3262 (SK CA), 50 Sask.R. 243 (Sask. C.A.). [2](1988), 1988 CanLII 5102 (SK CA), 68 Sask.R. 40 (Sask. C.A.). [3](1993), 1993 CanLII 6598 (SK CA), 109 Sask.R. 67 (Sask. C.A.). [4][1989] S.J. No. 34 (Sask. C.A.) (QL). [5](1991), 1991 CanLII 8019 (SK CA), 33 R.F.L. (3d) 25 (Sask. C.A.). [6][1993] S.J. No. 681 (Sask. C.A.) (QL). [7](1995), 1995 CanLII 4025 (SK CA), 134 Sask.R. 273 (Sask. C.A.). [8]R.S.S. 1978, c. C-42. [9](1956), 18 W.W.R. (N.S.) 481 at 486 (Sask.C.A.). [10](1985) 44 Sask.R.228 (C.A.).
This was an application to lift the stay imposed by Rule 15 of The Court of Appeal Rules. HELD: The Court declined to lift the stay. While a chambers judge acting under s. 20 of The Court of Appeal Act may not have the independent authority to make a maintenance order, a chambers judge has the authority to stay a judgment in its entirety in the Court of Queen's Bench in certain cases as long as doing so does not decide the appeal. The Court of Appeal stayed the decision of Klebuc J., which left the order of Wright in place, which maintained the existing maintenance obligation.