July 2021
We recently had occasion to deal with a situation involving a court order to sell the former family home and one party’s desire to delay that sale in light of an ongoing appeal of that order.
To complicate matters, the husband’s parents were joint owners of the property in question and were opposed to the sale in the matrimonial proceedings for various reasons.
A stay application was made before the chambers judge. Section 234 of the FLA requires that the stay application be brought in the court that made the order. The well-known test in RJR-MacDonald Inc. v. Canada, 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, has three components: there must be a serious question to be tried, the applicants must show that they will suffer irreparable harm if a stay is refused, and the balance of convenience must favour the granting of a stay.
The husband and the parents argued that the chambers judge had erred in the application of the proper legal test and factual foundation for an interim advance to the wife, particularly as to the amount awarded; he had erred in the application of the proper legal test and factual foundation required for an interim sale of the Homer Street Property, in ordering an interim sale when the wife did not, as part of her counterclaim, seek partition and sale, in granting the wife sole conduct of sale and in his factual determinations in the identification of credibility as a significant issue.
The chambers judge held that in order to avoid what may be construed as an explanation or defence of his written reasons, which is to be avoided, the appeals were not doomed to fail.
Irreparable harm is assessed qualitatively rather than quantitatively and may result from potential consequences that cannot later be cured for various reasons, including difficulty in obtaining financial redress: Negus v. Yehia, 2018 BCSC 2319 at para. 55; Chapman v. Chapman, 2020 BCSC 1409 at para. 10; M.N. v. C.G.F., 2020 BCSC 2072 at para. 17.
In this case, the chambers judge found a risk of irreparable harm. If the property was sold as contemplated by the order, the sale would be irreversible, even if the appeal succeeds. Moreover, a significant portion of the $250,000 advanced to the wife in consequence of the sale would have been spent by the time the appeal is heard. There is a risk that money disbursed to the wife could not be recouped from her.
In balancing the harm and inconvenience to the parties, the chambers judge held that while the harm and inconvenience to the wife was “palpable”, a brief stay was justifiable. While the risk to the parents could be mitigated, the chambers judge held that the appellants should have the opportunity to “test” his judgment before the Court of Appeal on an expedited basis.
If you are facing a court order sale of the family home, or looking for help with any family law issues, please reach out to any member of our LK Law family group.
 | Cassandra Drake Partner, Family Law Group Lindsay Kenney LLP – Vancouver Office |
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.