The stay of family trial orders pending appeal is a topic many family law clients and even some family lawyers are unclear on.
A common misconception is that once an order has been appealed, its terms are no longer in force until after a decision is rendered on the appeal. This is only the case if a stay of the family law court order has been obtained from the court.
Once a court makes an order, that order is effective on the pronouncement. As stated in section 234 of the Family Law Act:
234 Despite any other enactment, if an order made under this Act is appealed, the order remains in effect until the determination of the appeal unless the court that made it orders otherwise.
This means that the terms of an order are in effect as soon as the judge pronounces them. Even if that order is then appealed, the terms remain in effect. Some rules allow for a stay of family trial orders pending appeal. In today’s blog, Michael Lam explains the ins and outs of how stays of family trial orders pending appeal work.
Stay Of Family Trial Orders Pending Appeal 1 877 602 9900
A stay is where the court may order that some or all of the terms of a trial order being appealed are temporarily not in effect until the appeal is dealt with in full. Staying a court order is not automatically triggered by an appeal and is further not always granted by the court.
Procedurally, an application for a stay of an order is usually brought before the trial judge specifically. This is because the trial judge is most familiar with the issues at hand on appeal, the trial proceedings and the credibility of each party.
The Test For A Stay Of Family Trial Orders Pending Appeal 1 877 602 9900
To order a stay, the court must be satisfied that party requesting the stay meets the following test from Rotaru v. Rotaru, 2009 BCSC 480 at paragraph 10:
- Is there a serious issue to be tried?
- Would the applicant suffer irreparable harm if the application were refused?
- Which of the parties would suffer greater harm from the granting or refusing of the stay pending a decision on the merits (the balance of convenience)?
The starting presumption of the court behind a stay application is that the judgment appealed from must be presumed to be correct and that the successful party at trial should not be deprived of the fruits of their judgment unless the interests of justice require that they are withheld pending an appeal.
Low Bar For Merits Of Appeal
Whether there is a serious issue to be tried is not a high standard and is a “relatively low bar” to establish. The application only needs to demonstrate that there is some merit to the appeal and that the appeal is arguable and not frivolous. The court at this stage does not delve in-depth into the potential arguments on appeal and simply looks at whether there is some argument that could be made on appeal.
Irreparable harm in stay application is defined as “harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.
Balance of Convenience
The balance of convenience is an exercise in weighing the prejudice that would be occasioned if the stay is or is not granted in light of the merits of the appeal and the harm potentially occasioned by a stay.
Stay Of Family Trial Orders Pending Appeal 1 877 602 9900
In the recent case, Zhao v. Fang, 2019 BCSC 2023, the court handled the stay application of a wife, who appealed a trial judgment that dealt with the full spectrum family law issues including guardianship and parenting, property division, ongoing and retroactive child and spousal support, security for support and the parties’ income. An interesting wrinkle, in this case, was that the trial judge retired before the stay application being heard with a new judge appointment by way of an ex mero motu order to deal with the final outstanding matters at the trial level.
In ordering a stay of the entire trial order, except for a provision respecting a vehicle, the court found as follows:
- The wife’s appeal was not frivolous. There were at least arguable grounds of appeal meeting the relatively low threshold for showing merits.
- The court also found a real risk that any gains the wife could have made on appeal could not be recoverable if a stay was not granted. The court focused on the fact that the husband did not have any assets in Canada and alleged debts of $200,000 as well as express statements by the husband during litigation that he would not pay any support to the wife. However, the court did reject the wife’s argument that the risk that the family home could be sold uprooting the wife and the children amounted to irreparable harm.
- With the balance of convenience, the court pointed out the trial judge’s findings that the husband was not credible at trial and did not provide full financial disclosure. In doing so, the court found that the financial hardship that the husband suggested would be occasioned by him did not outweigh the risk to the wife of empty appeal judgment.
With the above in mind, parties should be aware of the following:
- If you intend to appeal a judgment, you should apply for a stay of the court order that you are appealing as soon as you have decided to appeal.
- If you do not bring a stay application or if your stay application is unsuccessful, you must continue to follow the terms of the order that you are appealing. You risk being found in breach of that order if you do not have a stay and you do not abide by its terms.
The stay of family trial orders pending appeal is time-sensitive. We act for both the successful party at trial and for the person who feels an error was made that needs to be addressed by an Appeal Court.