Citation: Myatt v. Myatt, 2004 NSCA 124
Date: 20041013
Docket: CA 227297
Registry: Halifax
Between:
Blaise John Noel Myatt
Applicant/Appellant
v.
Marlene Ann Myatt
Respondent
Judges: Fichaud, J.A.
Application Heard: October 7, 2004, in Halifax, Nova Scotia, In Chambers
Held: Application is dismissed with costs in the cause.
Counsel: Kymberly Franklin, for the applicant/appellant
Marlene Ann Myatt, respondent in person
Decision:
[1] Mr. Myatt applies for a stay of execution of a corollary relief judgment.
Background
[2] Justice Nathanson granted the parties’divorce and issued a corollary relief judgment. The corollary relief judgment divided the matrimonial net worth and provided for the sale of matrimonial assets to generate a balancing payment in order to equalize the division. The judgment also ordered that Mr. Myatt pay to Ms. Myatt monthly child support of $352, monthly spousal support of $700 and $100 monthly toward both a lump sum award for past spousal support and balancing the division of net worth.
[3] Mr. Myatt’s notice of appeal challenges the division of assets and the spousal support. Mr. Myatt seeks a stay of the financial orders in the corollary relief judgment until this Court has issued a decision on his appeal.
[4] In support of this application, counsel for Mr. Myatt submitted two affidavits which were sworn by counsel, not by Mr. Myatt. These affidavits included contested statements of fact, particularly relating to the issue of irreparable harm. At the start of the hearing, I told counsel for Mr. Myatt that I would not accept these contested statements as evidence. Counsel for Mr. Myatt then called Mr. Myatt, who was in the court room, as a witness. Mr. Myatt testified at the Chambers hearing and was cross-examined by Ms. Myatt. It is that evidence which I will consider instead of the contested statements of fact in counsel’s affidavits. I will consider the exhibits and uncontested statements of fact in counsel’s affidavits.
[5] Ms. Myatt filed an affidavit in response to the application.
Principles
[6] An appeal does not automatically stay execution: Rule 62.10(1). Rule 62.10(2) gives the Chambers justice discretion to issue a stay. The starting principle is that a successful litigant should not be deprived of the benefit of his judgment unless “required in the interests of justice”: Coughlan v. Westminer Canada Ltd. (1993), 125 N.S.R. (2d) 171 (C.A.) at p. 174 per Freeman, J.A.
[7] In Fulton Insurance Agency v. Purdy (1990), 100 N.S.R. (2d) 341 (C.A.) at paras. 28 - 30, Justice Hallett stated the principles which govern stays of execution under Rule 62.10(2):
[28] In my opinion, stays of execution of judgment pending disposition of the appeal should only be granted if the appellant can either:
[29] (1) satisfy the Court on each of the following: (i) that there is an arguable issue raised on the appeal; (ii) that if the stay is not granted and the appeal is successful, the appellant will have suffered irreparable harm that it is difficult to, or cannot be compensated for by a damage award. This involves not only the theoretical consideration whether the harm is susceptible of being compensated in damages but also whether if the successful party at trial has executed on the appellant's property, whether or not the appellant if successful on appeal will be able to collect, and (iii) that the appellant will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted; the so-called balance of convenience, or
[30] (2) failing to meet the primary test, satisfy the Court that there are exceptional circumstances that would make it fit and just that the stay be granted in the case.
Fulton’s Primary Test
[8] Under the first branch of Fulton’s primary test, Mr. Myatt must establish that he has raised an arguable issue on appeal. I need not consider that matter because, in my view, the application fails to satisfy the second branch of the primary test, irreparable harm.
[9] In Amica Mature Lifestyles Inc. v. Brett, [2004] NSCA 93 at paras. 14-15, I said this about irreparable harm:
[14] I do not accept Brett's argument. If the applicant's only loss is financial, the applicant can afford to pay and the loss is quantifiable and recoverable, generally this is not "irreparable harm". There must at least be evidence of risk that the paid judgment would not be recovered. Halifax (Regional Municipality) v. 3006128 Nova Scotia Ltd. (2001), 198 N.S.R. (2d) 95 (C.A.), at 99 per Oland, J.A.; Hiltz and Seamone Co. Ltd. v. AGNS (1998), 167 N.S.R. (2d) 353 (C.A.) At p. 355 per Cromwell, J.A.; MacPhail v. Desrosiers (1998), 165 N.S.R. (2d) 32 (C.A.) at paras. 20-22 per Cromwell, J.A.; Campbell v. Jones and Derrick (2001), 197 N.S.R. (2d) 196 (C.A.) at paras. 7 - 8 per Roscoe, J.A.
[15] If the financial burden from payment could cause the applicant severe financial distress, or prevent the applicant from carrying forward the appeal, deprive the applicant of indispensable assets or damage the applicant's reputation or employment prospects, this might constitute irreparable harm: Leddicote v. Nova Scotia (Attorney General) (2001), 198 N.S.R. (2d) 101 (C.A.) at para. 11 per Roscoe, J.A.; Jensen v. Jensen (1991), 108 N.S.R. (2d) 120 (C.A.) at pp. 121 - 22 per Freeman, J.A. There is no evidence or suggestion that Brett would suffer harm of this nature from paying this judgment.
[10] The applicant for a stay must prove irreparable harm by evidence. General conclusory statements are insufficient: Cape Breton (Regional Municipality) v. Cape Breton & Central Nova Scotia Railway Ltd. (2003), 211 N.S.R. (2d) 368 (C.A.), at para. 17 per Oland, J.A.; Dalhousie University v. Dalhousie Faculty Association (2001), 195 N.S.R. (2d) 198 (C.A.) at para. 15 per Hallett, J.A.; Leddicote v. Nova Scotia (Attorney General) (2001), 198 N.S.R. (2d) 101 (C.A.), at para. 11 per Roscoe, J.A.
[11] Counsel for Mr. Myatt submits that if Mr. Myatt pays Ms. Myatt under the corollary relief judgment then, if the appeal succeeds, there is a risk that those amounts may not be repaid. There is no evidence on this application to support the conclusion that Ms. Myatt could not or would not repay. Mr. Myatt’s testimony on the Chambers hearing did not discuss this matter. Ms. Myatt was not cross-examined on her affidavit. In any case, there would be an option of setoff against Mr. Myatt’s ongoing spousal support payments.
[12] Mr. Myatt also testified that the support payments ordered by Justice Nathanson will result in his expenses exceeding his income. Justice Nathanson noted that Mr. Myatt had made incomplete financial disclosure. On his Chambers application Mr. Myatt provided little concrete evidence of his financial status. The scanty evidence before me does not support Mr. Myatt’s asserted inability to pay:
(a) Justice Nathanson took Mr. Myatt’s gross annual income of $48,760, less deductions for CPP and EI, leaving $46,130 per annum. Justice Nathanson took Mr. Myatt’s living expenses from the same statement of expenses which counsel for Mr. Myatt submitted on this application for the stay. The statement was outdated. After making several adjustments for unnecessary expenses, Justice Nathanson derived living expenses of $32,868 per annum. This gave a surplus of $13,262 per annum, or $1,105 per month. This was before Mr. Myatt’s income tax. Justice Nathanson ordered combined child and spousal support of $1,052 per month, plus $100 monthly toward the lump sum award for past spousal support.
(b) In his testimony on the Chambers application, Mr. Myatt stated that his income was between $54,000 and $56,000 per annum. The higher amount would be over $7,000 above the annual income used by Justice Nathanson to calculate the support payments.
(c) In his cross-examination on the stay application, Mr. Myatt acknowledged that his monthly rent has reduced from $699 on the statement used by Justice Nathanson to $575, a saving of $1,400 annually.
(d) Based on the evidence before me, it appears that Mr. Myatt now has higher income and lower expenses than the numbers used by Justice Nathanson. Justice Nathanson’s calculation appears to ignore income tax. But Mr. Myatt’s updated pre-tax surplus (current income less expenses and support payments) would approximate his income taxes after the deduction for spousal support payments.
(e) There is no evidence on this application of Mr. Myatt’s current assets, current net worth and solvency. I will not speculate on those matters.
[13] Mr. Myatt has not proven that denial of the stay would cause irreparable harm, as discussed in Amica v. Brett quoted above.
[14] Given my finding that there is no irreparable harm, it is unnecessary to consider the balance of convenience under Fulton’s primary test.
Fulton’s Secondary Test
[15] Fulton’s secondary test refers to “exceptional circumstances that would make it fit and just that the stay be granted in the case.”
[16] In Amica v. Brett I stated:
[23] An application for a stay of a monetary judgment will, in most cases, stand or fall with the primary test. If the appellant is insolvent, the immediate payment of the judgment may cause irreparable harm to the appellant. If the respondent is insolvent, the irreparable harm may be the risk of non-recovery if the appeal succeeds. Either way, the "irreparable harm" branch of the primary test addresses the concern. The authorities have stated that, in most cases, payment of a judgment from a solvent plaintiff to a solvent defendant will not attract a stay under either Fulton test. Pelot v. Prudential of America (1995), 143 N.S.R. (2d) 367 (C.A.) per Hallett, J.A. at para. 27; Lienaux v. Toronto-Dominion Bank (1997), 161 N.S.R. (2d) 236 (C.A.), at p. 240 per Bateman, J.A.; Earle v. Coltsfoot Publishing Co. (2000), 183 N.S.R. (2d) 396 (C.A.), per Glube, C.J.N.S. at paras. 17 - 20; Smith's Field Manor Development Ltd. v. Campbell, [2001] N.S.J. No. 273, 2001 NSCA 114, at paras. 30, 33 - 7, per Oland, J.A.; R. v. Innocente, [2001] N.S.J. No. 223, 2001 NSCA 97 at para. 36, per Oland, J.A.; Oceanart Pewter Canada Ltd. v. Hartlen, [1999] N.S.J. No. 192, Docket CA 156289, June 3, 1999, at para. 8 per Cromwell, J.A.; Halifax Regional Municipality v. 3006128 Nova Scotia Ltd., [2001] N.S.J. No. 374, 2001 NSCA 140 at para. 26 per Oland, J.A.; Royal Bank of Canada v. Woloszyn, [1999] N.S.J. No. 58, at para. 8 per Cromwell, J.A.
[17] Mr. Myatt’s alleged loss is financial. This is addressed by the “irreparable harm” branch of Fulton’s primary test. This is not an exceptional case where a monetary loss triggers the secondary test from Fulton. The stay application stands or falls with the primary test, and the secondary test is inapplicable.
[18] I dismiss the application with costs in the cause.
Fichaud, J.A.