Court of Appeal for Saskatchewan Docket: CACV2845 Citation: Lawson Rees, 2016 SKCA 37 Date: 2016-03-16 Between: Dennis Michael Lawson Appellant (Respondent) And Tamara Ashley Rees Respondent (Petitioner) Before: Ryan-Froslie J.A. Disposition: Application allowed Written reasons by: The Honourable Madam Justice Ryan-Froslie (in Chambers) On Appeal From: DIV 199 of 2015, Saskatoon Appeal Heard: 14 March 2016 Counsel: Karina Jackson for the Appellant Gregory Kuse for the Respondent Ryan-Froslie J.A. I. Introduction [1] The appellant, Dennis Lawson, applies pursuant to Rule 15 of The Court of Appeal Rules for an order staying execution of spousal support arrears created as result of an interim order. That interim order provided ongoing spousal support for Mr. Lawson’s wife, the respondent, Tamara Rees, in the amount of $10,000 per month; gave Ms. Rees exclusive possession of the family home; provided for shared parenting of their son and awarded child support to Ms. Rees of $2,726 per month. Mr. Lawson has appealed only those portions of the interim order relating to spousal support and exclusive possession of the family home. He has made all of the payments required by the order, except for the spousal support arrears. Ms. Rees has filed garnishees to collect those arrears. [2] The order for spousal support was made in the face of written agreement, pursuant to which Ms. Rees gave up her rights to spousal support. The parties were married on February 3, 2012, but had lived together since June 2010. They separated in March 2015. They have one child of their relationship who is three years of age. Ms. Rees has second child from another relationship who resides with her. The Chambers judge found Mr. Lawson’s income for child support purposes to be $349,993 per annum. Ms. Rees was unemployed. [3] The application leading to the interim order was heard on July 22, 2015. The Chambers judge did not render his decision until January 20, 2016. He ordered Mr. Lawson to pay spousal support to Ms. Rees commencing August 1, 2015. Accordingly, Mr. Lawson was in arrears of spousal support from the time the order was rendered. [4] Even though Ms. Rees was living in the family home, there was evidence, which the Chambers judge accepted, that Mr. Lawson was making significant payments with respect to that home to cover the mortgage, taxes, insurance and utilities ($4,476 per month). At para 59 of his judgment, the Chambers judge concluded: Therefore am ordering interim spousal support payments of $10,000 per month commencing August 1, 2015. Since the petitioner will be expected to pay all the bills associated with the matrimonial home in which she is living out of this amount except for the house insurance, and in August, September and October 2015 the respondent paid the bills for the matrimonial home, in each of those three months his spousal support payment will be $5,524 ($10,000 $4,476). As he stopped paying the bills for the family home at the end of October 2015 except for the house insurance, his November payment and all payments thereafter will be $10,000 per month until further court order. [5] Mr. Lawson contends there was no evidence to support the Chambers judge’s finding that he stopped paying the bills for the family home at the end of October 2015 and that that in fact was not the case. [6] Mr. Lawson now seeks stay with respect to the enforcement of the spousal support arrears only. He argues the amount of those arrears are in issue, that he should be credited up to and including January 2016 for his payments with respect to the family home and that there is merit to his appeal both with respect to Ms. Rees’s entitlement to and quantum of interim spousal support given the brief duration of the marriage (three years) and the prenuptial agreement signed by her. Mr. Lawson is concerned that if he is successful on his appeal, Ms. Rees would have no ability to repay any spousal support to him. He argues Ms. Rees had no income at the time of the application and that the main asset subject to division, pursuant to The Family Property Act, SS 1997, F-6.3, is the family home. That home was valued by Mr. Lawson in his property statement as of the date of application at $700,000, but its net value after payment of the mortgage ($566,718.08) and the homeline ($93,250) is only $40,000. Against Ms. Rees’s share of the family home would have to be credited the $25,000 she took from the line of credit after the separation. III. analysis [7] Rule 15(1) of The Court of Appeal Rules provides that the service and filing of notice of appeal does not stay the execution of an order for spousal support. Pursuant to Rule 15(2), judge of this Court has the power to give directions with respect to staying proceedings. [8] The principles pertaining to applications to lift stay of proceeding are well-settled. In making decisions with respect to such applications, the Courts objective is to prevent injustice and to ensure the results are as fair and equitable as possible. As stated by Lane J.A. in Ochapowace First Nation Araya (1994), 1994 CanLII 4598 (SK CA), 123 Sask 311 (CA) at para 11: The purpose [of lifting stay] is to minimize prejudice pending the appeal and to balance the competing interests of the respondent who has been successful against those of an appellant who ought not to be prejudiced simply by appealing. In my view, the same objectives apply when imposing stay, namely, to prevent injustice, to ensure the result is as fair and equitable as possible for all sides, to minimize prejudice and to balance the competing interests. [9] In this case, am satisfied stay should be imposed with respect to the enforcement of the spousal support arrears created by the interim order. First, there is an arguable issue that the Chambers judge’s conclusion that Mr. Lawson’s payment of expenses pertaining to the family home ceased after October 2015 was not supported by the evidence before him. Second, there is also an arguable issue with respect to the effect of the written agreement on the granting of interim spousal support and the quantum of that support given the circumstances of the parties, including their incomes, expenses, financial obligations (payment of family debt) and the fact they share custody of their son. Third, if the order is enforced, Mr. Lawson may be prejudiced. This is so because Ms. Rees’s means are very limited and thus there is a real possibility she would not be able repay any “overpayment” of spousal support. Fourth, Ms. Rees would not be unduly prejudiced by the imposition of stay as Mr. Lawson is paying ongoing support (spousal and child) of $12,726 per month and Ms. Rees, by her own admission, has taken $25,000 from the line of credit. Fifth, the imposition of stay with respect to only the spousal support arrears balances the competing interests at stake in the appeal. IV. conclusion [10] Mr. Lawson’s application to impose a stay with respect to enforcement of the retroactive spousal support arrears created by the January 20, 2016 interim order is allowed. That stay shall remain in place until the hearing of the appeal. To be clear, the stay does not affect ongoing spousal support payments or their enforcement. [11] Costs with respect to this application shall be left to the panel hearing the appeal. “Ryan-Froslie J.A.” Ryan-Froslie J.A.
HELD: The application was allowed and the stay of the enforcement of retroactive spousal support was granted. There was an arguable issue with respect to the chambers judge’s conclusions that the appellant had stopped paying the household expenses, the effect of the written agreement on the granting of interim spousal support, and the quantum of the support. If the order was enforced, the appellant would be prejudiced. The respondent’s means were limited and there was a real prospect that she would be unable to repay any overpayment of spousal support.