Date: 20010817
NOVA SCOTIA COURT OF APPEAL
[Cite as: Crouse v. Crouse, 2001 NSCA 117]
BETWEEN:
ROSS LETSON CROUSE
Appellant
- and -
CATHERINE ANNE CROUSE
Respondent
D E C I S I O N
Counsel: Appellant in person
Respondent not appearing
Application Heard: August 16, 2001
Decision Delivered: August 17, 2001
BEFORE THE HONOURABLE JUSTICE CROMWELL IN CHAMBERS
CROMWELL, J.A.: (in chambers)
[1] The appellant, Ross Letson Crouse, applies for a stay of execution of two orders made in the Supreme Court Family Division pending disposition of his appeal from those orders.
[2] The first order is that of Williams, J. dated June 26th, 2000, requiring the appellant to pay $1350 per month commencing the last day of June and continuing every month thereafter until further order of the Court and to pay a further sum of $700 on or before June 20th by way of additional interim support and to pay $400 interim suit money on or before the last day of June.
[3] The second order under appeal is that of Campbell, J. dated April 24, 2001, but apparently made in Court on February 13, 2001 ordering that Mr. Crouse’s employer remit to Catherine Crouse, in care of her solicitor, the sum of $1350 per month commencing April 23, 2001.
[4] The notice of appeal from these orders was filed on March 13th, 2001. The appeal of the June 26, 2000 order was, therefore, filed several months late and no extension of time has been sought. The matter first came to chambers on August 2nd, 2001. No dates for the appeal have yet been set and Mr. Crouse has not filed the required certificate, properly completed, stating when the appeal book will be ready to be filed. The certificate he has filed states only that he intends to order the tapes of evidence.
[5] Mr. Crouse has filed an affidavit in support of his stay application which, briefly put, sets out the bases upon which he will argue that the orders of Justice Williams and Justice Campbell are in error. He says that these orders should be stayed because he has a “valid appeal” pending before the Court of Appeal with respect to them.
[6] Rule 62.10 of the Civil Procedure Rules states that:
The filing of a notice of appeal shall not operate as a stay of execution of the judgment appealed from.
[7] It follows that the fact that Mr. Crouse has what he refers to as a “valid appeal” is not sufficient for a stay of the orders under appeal.
[8] In order to obtain a stay, the appellant must satisfy either the primary test or the secondary test as set out in Fulton Insurance Agencies v. Purdy (1990), 100 N.S.R. (2d) 341. The primary test requires the appellant, Mr. Crouse, to show that: (a) there is an arguable issue raised on the appeal; (b) if the stay is not granted and the appeal is successful, he will, or there is a serious risk that he will suffer irreparable harm in the sense that the harm is difficult to or cannot be compensated for by an award of damages or costs; and (c) he is likely to suffer greater harm if the stay were not granted than the respondent would suffer if it were. The secondary test requires the appellant to show that there are exceptional circumstances making it fit and just for the stay to be granted.
[9] I accept that the notice of appeal discloses arguable grounds. However, Mr. Crouse has not provided evidence that he will suffer irreparable harm if the stay is refused and there is no evidence of any exceptional circumstances making it fit and just to stay the enforcement of the two orders under appeal. I am also concerned that the notice of appeal was filed in March of this year, that the appeal with respect to the June 2000 interim order is months out of time and that the necessary appeal book and factum have not yet been filed some five months after the filing of the notice of appeal.
[10] The application for a stay of execution is dismissed. No one appeared at the hearing on behalf of the respondent although there is a sworn affidavit of service of the application on the file. There will be no order as to costs.
Cromwell, J.A.