C.A. No. 125303
NOVA SCOTIA COURT OF APPEAL
Cite as Stuckless v. Stuckless, 1996 NSCA 1
BETWEEN:
EVERETT ROGER STUCKLESS ) Appellant in person
) for the Appellant
Appellant )
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- and - )
) Respondent not appearing
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KRYSTAL ANN STUCKLESS )
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Respondent ) Application Heard:
) March 21, 1996
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) Decision Delivered:
) March 22, 1996
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BEFORE THE HONOURABLE MR. JUSTICE E.J. FLINN IN CHAMBERS
FLINN, J.A.:
This is an application for a stay of execution on a judgment, pending the hearing of an appeal of that judgment. The judgment is for arrears of child support, and on-going child support.
The appellant, Mr. Stuckless, made application to the Supreme Court of Nova Scotia to vary an interim order of child support granted by the Court of Queen's Bench of Manitoba (Family Division). The application to vary was heard by Justice J. Michael MacDonald on February 7th, 1996. Justice MacDonald refused to vary the order of the Manitoba Court, and issued an order providing for payment of arrears, future monthly payments and costs. Mr. Stuckless has appealed Justice MacDonald's decision, and wants payments under the order stayed until his appeal is heard.
This matter originally came on for hearing on March 14th, 1996. I adjourned the matter for one week for two reasons:
(i) Mr. Stuckless had indicated that the respondent would agree to the stay - or at least would not oppose it - if he agreed to pay $350.00 per month until the hearing of the appeal. I indicated to Mr. Stuckless that I wanted evidence of that agreement. Mr. Stuckless now advises me that the respondent will not agree to those terms; and
(ii) the hearing of this appeal is scheduled for May 30th, 1996. The case book is due on April 4th, 1996. Since Mr. Stuckless is not represented by counsel, and in view of the history of this matter, I wanted to know what efforts were being made to ensure compliance with that filing date. Mr. Stuckless has now assured me that the transcript is in the process of being typed, and the filing date for the appeal book will be met.
Background
It is important to review the background which has led to the current state of affairs.
Mr. and Mrs. Stuckless were married in Port Hawkesbury, Nova Scotia, on May 12th, 1984. There are three children of the marriage, ages 12, 9 and 8. The parties separated in July of 1992 when Mrs. Stuckless left Nova Scotia with the three children and moved to Manitoba.
On September 6th, 1994, the Court of Queen's Bench for the Province of Manitoba (Family Division) issued an order requiring Mr. Stuckless to pay the sum of $1,000 per month for the support of the three children. The payments were to commence September 15th, 1994. The Manitoba Court further ordered that Mr. Stuckless make full disclosure of his financial affairs to counsel for the respondent by October 15th, 1994. The order also made it clear that either party could apply for a variation of the amount of child support after financial disclosure had been provided. Mr. Stuckless did not make any such application (until 1996), he did not make full disclosure of his financial affairs as the order provided, nor did he make any payments for the support of his children pursuant to the order.
The Manitoba Order was registered with the Family Court for the Province of Nova Scotia in November 1994. Subsequently a summons was issued requiring Mr. Stuckless to appear in the Nova Scotia Family Court to show cause why he had failed to make the child support payments as ordered.
After several adjournments to enable Mr. Stuckless to seek legal counsel the matter was set down for hearing on May 11th, 1995. Mr. Stuckless appeared without legal counsel, and without the necessary information as to his financial status.
Judge Williams of the Family Court in Dartmouth made the following comments in his decision:
"With respect to the proceeding, Mr. Stuckless appears to have not responded in any way to the Manitoba order, you know, on the provision of the financial material which he asserts he has provided. He has not provided this court with a statement of assets and liabilities as requested.
With respect to the Manitoba order, Mr. Stuckless, I do not have the authority to change it. All I have the authority to do is to enforce it. If you choose to ignore it, that is your decision. And while I can appreciate that it is complicated dealing with an order out of another Province, that I appreciate that it seems like hassle, the fact of the matter is if you choose to ignore it that is your decision, and effectively that is what you've done.
The order, on the face of it, provides that either party may apply to vary the amount of child support after financial disclosure has been provided as ordered. The order on its face tells you that you can apply to change it. That application to vary can be made either in Manitoba or in the -- as I understand it, in the Supreme Court of Nova Scotia here.
With respect to the matter, the matter has been adjourned twice and the record, I am confident, would show, Mr. Stuckless, that I advised you in February that an application to vary could be made in the Supreme Court or there. In any event, if I did not, I'm telling you that now, and in any event that there is no--that is no excuse for having sat on your hands, so to speak, that I didn't tell you in February. ...... I didn't need to tell you, it's in the order.
With respect to the matter, Mr. Stuckless, if you don't do anything about it, it's going to be enforced in its full amount. At this time, the order will be that with respect to the $8,000.00 in arrears that the matter of payment of those arrears will be adjourned to a date in September to hear from you as to a proposal for the payment of the arrears and/or to allow you to provide further information concerning the outstanding order.
In the meantime, the order is for a thousand dollars a month. Your evidence is that you have paid various other debts of your wife. I am taking that as face value and I'm delaying enforcement of the $8,000.00 that's owing as of today's day. ...... With respect to the ongoing maintenance payments of $1,000.00 a month, a garnishee order will be directed to Prudential Insurance for payment of that thousand dollars a month. If nothing else, Mr. Stuckless, that should provide plenty of incentive for you to attend to varying this order." {Emphasis added}
Mr. Stuckless did not follow Judge Williams' suggestion; i.e., to get his financial information together, and make application to vary the order. Instead, he filed a notice of appeal of Judge Williams' decision on June 2nd.
The matter was set down for hearing in the Supreme Court of Nova Scotia for September 25th, 1995. It was adjourned on two separate occasions because Mr. Stuckless did not comply with deadlines for the filing of an appeal book and factum.
Eventually, in December 1995, Mr. Stuckless agreed that he was in the wrong forum, and that he would apply for a variation order. As a result, his appeal was dismissed with costs of $250.00. The costs remain unpaid.
The application for the variation order came on for hearing before Justice MacDonald on February 7th, 1996.
In his decision Justice MacDonald said the following:
". . . . .Mr. Stuckless may have to change his lifestyle to adapt to the fact that he has an obligation to support his three children and this Court is extremely concerned about the fact that Mr. Stuckless has ignored his obligation from the issuance of this particular Order.
No payments whatsoever have been made by Mr. Stuckless to the authority as prescribed in the Order. He has, in my mind, completely ignored this Order. I find that he has, if he adjusts his lifestyle, the ability to pay this Order. His obligation to his children comes first. I find on the basis of Young v. Young, a decision of this Appeal Court that unless Mr. Stuckless shows to the Court a reasonable explanation as to why arrears have not been satisfied, he ought not to be granted an application to vary. I find that he has not shown this Court any explanation whatsoever to justify why these arrears have not been paid. Furthermore, I find on the facts that with adjustments to his budget, Mr. Stuckless ought to have and should be able to pay the amount as ordered."
Justice MacDonald ordered:
(a) that arrears of child support are fixed at $16,000 as of February 7th, 1996, and are payable to Mrs. Stuckless forthwith;
(b) that Mr. Stuckless shall pay child support for his three children in the amount of $1,000 per month, commencing February 15th, 1996, through the Director of Maintenance Enforcement for the Province of Nova Scotia;
(c) that Mr. Stuckless shall pay to Mrs. Stuckless costs of the application in the amount of $500; and
(d) that Mr. Stuckless shall pay to Mrs. Stuckless the costs which were fixed, arising out of the abandonment of his appeal of Judge Williams' decision, in the amount of $250.00.
The Applicant's Position
Apparently, since the order of Justice MacDonald, a garnishee has been placed against Mr. Stuckless' wages for $1,000.00 per month, being the required monthly payment, plus $250.00 per month to be applied to the arrears ($16,000.00).
Mr. Stuckless says in his application that he cannot afford this, that he only has an annual income of $15,000.00, and if the order is not stayed he will go bankrupt.
Mr. Stuckless produced no documentary evidence to support his statement that his annual income is only $15,000.00. The record from his employer, which was entered as an exhibit before Justice MacDonald, indicated that his gross income for the first eleven months of 1995 was $34,275.09. He indicated to me at the hearing of his application that this figure was a gross figure and did not include his business expenses. Those expenses were not documented. I asked Mr. Stuckless what his net income for 1995 was, and he could not tell me. The only documentary evidence which Mr. Stuckless produced at the hearing was a letter from the Canadian Imperial Bank of Commerce indicating that the payments on his car loan ($12,619.15) were past due.
Mr. Stuckless says that he can, and will, pay $350.00 per month for the support of his children; however, he cannot afford to pay $1,000.00 per month, and he has no money to pay the arrears.
The respondent, Mrs. Stuckless, resides in Manitoba. While she was unable to attend at the hearing of this application she has indicated her opposition to it.
The grounds of appeal, stated in Mr. Stuckless' notice of appeal are as follows:
"#1 That, there was reasonable documents filed with the court to prove that the order is in excess.
#2 That, the learned Justice H. MacDonald dismissed the order to vary without hearing all the evidence.
#3 That, the learned Justice H. MacDonald dismissed the order to vary without taking into consideration monies paid towards bills and monies already paid to the respondent.
#4 such other grounds that as may appear upon review of the record."
The Law
The application for the stay of execution is made pursuant to Rule 62.10 which provides:
"(1) The filing of a notice of appeal shall not operate as a stay of execution of the judgment appealed from.
(2) A Judge on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution of any judgment appealed from or of any judgment or proceedings of or before a magistrate or tribunal which is being reviewed on an appeal under Rules 56 or 58 or otherwise.
(3) An order under Rule 62.10(2) may be granted on such terms as the Judge deems just."
The test that must be applied in determining whether or not to grant a stay is that stated by Hallett, J.A. in Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R. (2d) 341 (C.A.) at pp. 346‑347:
"A review of the cases indicates there is a trend towards applying what is in effect the American Cyanamid test for an interlocutory injunction in considering applications for stays of execution pending appeal. In my opinion, it is a proper test as it puts a fairly heavy burden on the appellant which is warranted on a stay application considering the nature of the remedy which prevents a litigant from realizing the fruits of his litigation pending the hearing of the appeal.
In my opinion, stays of execution of judgment pending disposition of the appeal should only be granted if the appellant can either:
(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:
(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."
Disposition
Considering the first part of the Fulton test, clearly, the balance of convenience here favours Mr. Stuckless' three children who, as has been determined, are in need of their father's financial support.
Further, there is nothing before me to show that Mr. Stuckless will suffer any irreparable harm if the judgment is not stayed, and he is successful on the appeal. Mr. Stuckless' prediction of imminent bankruptcy rings hollow with me. His gross income for the first eleven months of 1995 was in excess of $34,000.00; and he is unable, or unwilling, to provide me with a net income figure and documentation to support it. He simply states, without supporting evidence, that his income is only $15,000.00 per year. Further, there is only two months before the hearing of this appeal. Mr. Stuckless has not shown me that, even if he is successful on Mr. Stuckless' appeal, he will suffer any irreparable harm by having to pay an additional two months of child support.
This application, therefore, does not pass the first part of the Fulton test.
Although it is not necessary for me to decide this issue, I have serious reservations as to whether or not there is an arguable issue raised on this appeal. Mr. Stuckless has, essentially, ignored his legal obligation to support his three children since September 1994 without "any explanation whatsoever" as Justice MacDonald found. Justice MacDonald further found, on the facts, that with adjustments to his budget Mr. Stuckless "ought to have and should be able to pay the amount as endorsed."
With those findings it would have been wrong, in any event, for Justice MacDonald to have varied the order. This Court, in Young v. Young (1977), 17 N.S.R. (2d) 375, reversed a trial judge's order varying a maintenance award where there were outstanding arrears, and no satisfactory explanation for those arrears. Coffin J.A. said at p. 376:
"It is the unanimous decision of this Court that the respondent should either have paid the arrears or given some explanation as to why he had not done so before his application for reduction of the monthly payments was entertained. See: Eves v. Eves (1975), 17 R.F.L. 57, and Parkinson v. Parkinson (1973), 11 R.F.L. 128; [1973] 3 O.R. 293."
With respect to the second part of the Fulton test, there are, quite simply, no exceptional circumstances here that would make it fit and just that the stay be granted in this case.
As Freeman J.A. said in Coughlan v. Westminer Canada Limited (1991), 25 N.S.R. (2d) 171 at p. 174:
"Stays deprive successful parties of their remedies, and they are not granted routinely in this Province. They are equitable remedies and the party seeking the stay must satisfy the Court it is required in the interest of justice."
Considering the interests of Mr. Stuckless' three children, who require his financial support, it would be quite inappropriate to grant a stay of execution in these circumstances.
The application is dismissed without costs.
Flinn, J.A.
C.A. No. 125303
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
EVERETT ROGER STUCKLESS
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Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
KRYSTAL ANN STUCKLESS )
) FLINN, J.A.
) (in Chambers)
Respondent )
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