Ruling says financial harm to parent will be temporary, manageable, not harsh
The Newfoundland and Labrador Court of Appeal has declined to stay an interim child support order, even though it acknowledged a serious issue in the father’s appeal, which alleged that the mother improperly served the application on his former lawyer.
In P.O. v S.F., 2025 NLCA 34, the parties had two children, who resided with the respondent mother. The mother brought an interim application requesting basic child support, retroactive child support, and a contribution to the children’s special and/or extraordinary expenses.
A judge of the Supreme Court of Newfoundland and Labrador’s Family Division partly granted the application and ordered the applicant/appellant father to pay $1,142.48 in basic monthly child support, beginning Sept. 1, in line with the applicable Federal Child Support Tables. The application judge based his calculation on the father’s annual income of $79,252.
The judge directed the parties to share the children’s health expenses under s. 7(1)(c) of the Federal Child Support Guidelines, SOR/97-175, with the mother responsible for 59.6 percent and the father 40.4 percent. The judge did not order retroactive child support, which a final order could address.
The father appealed the interim written order and alleged errors in the judge’s:
- hearing of the mother’s application when the service of the application was improper, given that she served it on a lawyer who no longer represented him
- denial of the father’s request to postpone the hearing, as he was seeking a new lawyer
- predetermining the application before hearing the parties’ arguments
- using incorrect incomes to calculate the proportional shares of the special expenses
- issuance of a vague written order that failed to reflect the oral decision
The mother countered that she did not know the lawyer had ceased representing the father when she served the application. She claimed the judge considered and appropriately rejected the postponement request.
The father applied to stay the enforcement of the interim child support order pending his appeal.
Order not stayed
The Court of Appeal of Newfoundland and Labrador dismissed the application for a stay of enforcement pending the father’s appeal upon applying the tripartite test in RJR - MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.
First, regarding whether there was a serious issue under appeal, the appeal court ruled that the father, who focused on his first two appeal grounds during the oral hearing of the application, met the low threshold applicable.
The appeal court added that the father asserted reasonable appeal grounds, properly explained his most substantial arguments, and did not propose a frivolous or vexatious appeal.
Second, the appeal court held that the father failed to demonstrate the irreparable harm needed to justify a stay of the interim child support order.
The appeal court said any harm the father would experience due to the stay was readily quantifiable in a monetary amount. The appeal court found several ways for him to receive any repayment he ultimately deserved and saw no risk that he could not recover any money due to him.
The appeal court accepted that the father would be paying child support over a period for which the court might not deem him responsible.
However, the appeal court pointed out that the father had numerous available options to mitigate any temporary financial challenges over that period. The appeal court said any financial harm would be manageable and not unduly harsh.
Third, the appeal court acknowledged that it did not need to address the balance of inconvenience because the father failed the test’s second part. However, the appeal court briefly tackled the third step to complete its reasons.
The appeal court determined that the balance of inconvenience favoured refusing the stay. The appeal court explained that:
- If the court did not grant a stay and the father succeeded on appeal, he would have overpaid child support for the pertinent period
- If the court ordered a stay and the father failed on appeal, he would have underpaid child support for that period
The appeal court noted that, either way, there was a risk that somebody would have less money available than they ordinarily would have over that period. The appeal court concluded that it would prefer to expose the father, not the children, to that risk.
