Staying enforcement of a spousal or child support support order is the payor's way to put his support obligations in cold storage; on ice.

In the minds of some, it ought not even to be an available remedy. The payor has had his/her day in court so if he/she wants to change a support order, no more or less Court time is taken to make such an application ... except that by making an application to stay, the payor gets an intervening kick at the can.

However, the Courts want always, in the spirit of justice, to give the payor an opportunity to stay enforcement of support payments just in case the support agency is being heavy-handed, the order can be more speedily stayed with a hearing or trial on the support order itself on the horizon, or some other special circumstances that may cause the payor a disproportionate prejudice.

Support enforcement proceedings eat up the valuable resources of support enforcement agencies, resources needed elsewhere. In any event, their lawyers are often overworked and have to juggle a great many cases so there's little time to separate the wheat from the shaft or to make a spirited opposition to most applications to stay. None of this is lost on the astute payor.

Compounding matters, this area of family law is chock full of complexities, with an intermingling of varying provincial statutes and rules of court, the aspect of provincial-leval and superior-level courts, and even the occasional reference to equity.

Contrary to application to vary child support, the support enforcement agency is an interested party but in an application to stay, the agency is, as in  most Canadian jurisdictions such a public agency has exclusive jurisdiction to enforce support orders. As Justice Gauthier of the Ontario Court of Justice wrote in McDougall:

"The Director of the Family Responsibility Office is not an 'interested party' in an application to vary a spousal support order. However, service upon the Director is vital when one seeks to stay enforcement of a support order."

stay of enforcement orderIn all cases, reference should be made initially to the provisions of the relevant provincial support statute as well as the rules of court. Examples are, for Ontario, the Family Responsibility and Support Arrears Enforcement Act; for Alberta, the Maintenance Enforcement Act.

Some situations naturally give rise to consideration of a stay of enforcement, such as when the payor gets a prison term but such a state of affairs will not always result in a stay.

In Dow, the Court concluded that it was:

"... not satisfied that, despite his incarceration, that the appellant has demonstrated irreparable harm here.

"(T)he balance of condolence lies in favour of the payee in these particular circumstances. In my view to recognize my discretion otherwise would in effect permit the appellant to continue to act as if the decision had never been rendered".

In NBG, the payor was given a stay even though the prison term was for assault upon the support payee, which makes no sense at all.

In Baranyi, David Baranyi, the payor was in and out of prison. According to Justice Little of the Ontario Provincial Court who heard the case in 1998:

"(The payor) chose, when he was working, not to make any payments ... for child support.

"The applicant has objected to the respondent's characterizing him as a dead-beat dad. Since the applicant has never made a voluntary payment, I can understand the respondent's position. When the applicant was working or should have been working, he was thinking about meeting his own needs, not the needs of his daughter. The applicant presents himself to this court as a poor soul who has an alcohol problem, a history of incarceration, a lot of debt, a relationship with two younger children. He also present himself as a father who is not willing to pay support for his older child...

"Since the applicant has not made any voluntary payments for child support for over ten years, I decline to stay any enforcement effort...."

An application to stay can be as regards arrears or as regards ongoing support, or both.

Further complicating matters is the often concurrent jurisdiction of superior level (such as a supreme court of court of Queen's bench) and the typical court with jurisdiction for enforcement matters, the provincial court. The fact that substantive support proceedings are extant in a superior level or divorce court does not affect the provincial court from disposing of related but sufficiently different enforcement application (Wintraub). Conversely, a superior level court may find that it does not have jurisdiction to deal with an application for a stay, although this view is not unanimously held.

In Johnston, Justice Southin of the British Columbia Supreme Court opined that:

"... this court has no jurisdiction under the applicable statutes to order a stay of a (support) order made under ...the Family Relations Act.... I can find nothing in any of these statutes empowering judges of this court to stay proceedings on a Provincial Court (support) order made under the Family Relations Act and I know of no inherent jurisdiction in the judges of this court to take such a step."

In Cavanaugh, Justice LaForme of the Ontario Court of Justice, General Division stated the law to be:

"I am not prepared to hold that in no circumstances can this court interfere with enforcement proceedings of an order pursuant to a (divorce order), undertaken ... in Provincial Division. Indeed, I am satisfied that in appropriate circumstances this court can and should order a stay of such proceedings if it is established that it is in the public interest to do so or equity demands it."

It is not unusual for a court to stay enforcement provided a much lesser or nominal amount is paid on the arrears or as ongoing support with the condition that if a payment is missed, the stay is lifted.

In Armstrong, the payor had new suport responsibilities elsewhere and was said to be "forthright and prompt in providing reasonable and complete information as to his earnings and past earnings."

Generally, these are instances where an application to stay is raised: when enforcement has taken far too long and is suddenly pursued; when an application to vary is pending, where the support order has been appealed, and where there is some real issue as to an order of another jurisdiction being a final order or not.

In Peacock, the British Columbia court refused to stay enforcement even though the recipient (payee) had delayed enforcement of arrears on an interim order, turning the payor's argument around and noting that the payor had waited so long to apply to stay or vary the interim order.

The facts were different in Cooper where a stay on an interim support order was granted given the relative prejudice to the payor. In Cooper, all that was at issue was a 2-month stay, granted by Justice Wilson who noted that:

"... payment of the arrears at this time, will require, either borrowing of money, or the liquidation of assets.... To force borrowing, or liquidation, at this time, does pose a risk of prejudice to Mr. Cooper. That risk cannot be avoided if execution proceedings are initiated forthwith."

In JT v RAM, the Court spotted the payor a 90-day suspension pending his application for a child support adjustment for undue hardship.

In Coutts, the court responded to an application to cancel arrears by denying it but noted:

"...the problem faced by the parties arises from a lack of financial resources and no judicial order can obviate the same. Until Mr. Coutts' financial position improves there is no realistic possibility of him paying the arrears accumulated to date. Accordingly, I order that the enforcement thereof be stayed for 12 months calculated from the date hereof."

In Stepanick, the payor persuaded the court that he faced the very real risk of losing his job if enforcement was not suspended, and he received a 90-day suspension.

Where the argument being made is that an application to vary is pending, the Court hearing the application for a stay pending the hearing on the application to vary must be convinced that there's at least a prima facie case for variation, and that in any event, the payor comes to Court with "clean hands" (that the payor has made payments on the order or has not otherwise prejudiced the recipient by, for example, withholding financial disclosure.

In Marok, the payor was a poster-boy for non-disclosure, showing some temerity in asking for a stay. Justice Fagomeni was not impressed and denied the application for a stay:

"In this case the husband in my assessment does not come to Court with clean hands.  Firstly, the husband gave 21 undertakings at his cross-examination and the information has not been provided to the wife despite the fact that the cross-examination took place (12 months ago). Secondly, the husband has not paid any support...."

Payors often think that there's an automatic stay pending appeal - there isn't. The court will consider the merits of the appeal and the balance of prejudice a stay might cause.

In Barrera, a 1985 case out of Ontario, the payor was given the stay he applied for pending the hearing of his appeal of the support order, Justice Weiler stating the law to be:

"Generally the factors to be considered on a motion for a stay, which are equally applicable here, appear to be the bona fides of the appeal, the substance of the grounds for appeal, and hardship to the respective parties if a stay is refused or granted."

In Dow, the Ontario court very nicely summarized the law in this matter:

"... the principles generally applicable appear to be that there are strong and obvious policy reasons for enforcing support orders pending appeals.

"It is generally recognized that the trial judge has had the benefit hearing the relevant evidence of need. The recipient of the benefit of those orders should not be deprived other than on the clearest evidence and in the most unusual circumstances.

"I am also informed by the jurisprudence which suggests that flexibility is de rigeur in deciding whether or not a stay should be granted on family law matters. Among the considerations the court should have in mind are: the grounds of the appeal; the parties position at trial; what has transpired since the trial; the general circumstances of the case and the probable delay between the trial and the appeal.

"I am also guided by the principle that while the balance of convenience consideration is similar to that of an interlocutory injunction, greatest insight must be given to the fact that the adjudication has already taken place and is regarded as prima facie correct with respect to irreparable harm, I am informed by the case-law which says that mere inconvenience and annoyance is not enough to induce the court to take away from the successful party the benefit of this decree."