Make sure you are compliant with your support obligation when appealing

April 15, 2021 | Kaitlin Jagersky

The Court of Appeal in Abu-Saud v. Abu-Saud, 2020 ONCA 824 (CanLII) recently affirmed its jurisdiction to quash or dismiss an appeal due to non-compliance of a spousal support order. In this case, the Respondent Wife was successful in her request to quash the appeal of her former spouse based on his ongoing and wilful breach of court orders dealing with ongoing and arrears of spousal support payable to her. The Appellant Husband was in breach of not only the trial judge’s order but also the Court of Appeal’s order. The Court of Appeal held that the actions of the Appellant Husband were “deliberate, relentless and indefensible” finding that he deliberately undertook, without lawful justification, whatever step he could to avoid his spousal support obligation to the Respondent Wife.

Remarkably, the Court also granted the Respondent Wife full indemnity costs for the motion to quash and the appeal, stating “[t]his is one of those very clear and exceptional cases where Ms. Abu‑Saud is entitled to her full indemnity costs of her motion to quash and the appeal. Simply put, but for Mr. Abu-Saud’s contumelious refusal to comply with his court-ordered obligations, she would not have been put to this tremendous expense….[t]hese costs are amply justified in the circumstances of this case.” The Court was clearly not pleased with the actions taken by Appellant Husband as full-indemnity costs are very rarely  made by the Court, specifically by the Court of Appeal.

The takeaway from this case is to ensure that you are compliant with any child or spousal support order made against you if you intend on appealing the order. It is important to know that support orders are not automatically “stayed” following the filing of an appeal, meaning that you are still obligated to pay the support order even if you believe the trial judge made an error in law and/or an error in fact.

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