Ontario Civil


Appeal

STAY PENDING APPEAL

Balance of convenience favoured granting stay because sale of matrimonial home might permanently impair husband’s rights

Parties were married for 19 years and had four children. Husband was successful homebuilder and land developer. Parties acquired several properties during marriage and most of them were placed in wife’s name, including matrimonial home. Parties had purchased property adjacent to matrimonial home, which was placed in name of oldest daughter. Husband claimed parties had agreed they would subdivide and develop matrimonial home property and lot in daughter’s name and build new homes to sell at significant profit. Wife and children had moved out of matrimonial home. Arbitrator made interim award that provided matrimonial home be immediately listed and sold. Husband appealed interim arbitration award. Husband brought motion for stay. Motion granted. Court had jurisdiction under s. 134 of Courts of Justice Act to grant stay. As sole owner on title, wife had prima facie right to sell matrimonial home, subject to husband’s rights as spouse under Part II of Family Law Act. Arbitrator did not deal with husband’s rights as part of his award. It was clear husband was claiming property interest in matrimonial home by making trust claim. Husband raised issue for appeal that was not vexatious or frivolous and there was serious issue to be determined. Husband established he would suffer irreparable harm if stay were not granted. Husband had right to have trust claim litigated and would be prejudiced if matrimonial home was sold before appeal was heard. Balance of convenience favoured granting stay because sale of matrimonial home might permanently impair husband’s rights, in comparison to temporary distress to wife of not listing home for sale.

Jurewicz v. Jurewicz (Dec. 10, 2015, Ont. S.C.J., Emery J., File No. FS-15-0256-00) 261 A.C.W.S. (3d) 262.

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