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Epstein’s This Week in Family Law | Divorce order

Denial of a litigant’s request to stay a divorce order due to her being in contempt of a previous order discussed in recent decision.

Epstein’s This Week in Family Law

By: Philip Epstein

A Litigant Cannot Seek a Stay of an Order while in a Contempt of a Previous Order

Nowacki v. Nowacki, 62 R.F.L. (7th) 20 (Ont. C.A.): The wife seeks to stay a final divorce order from a single judge of the Ontario Court of Appeal. However, at the time of the application for a stay, the wife is in contempt of previous court orders that require her to return a five-year-old child from Poland to Ontario. The wife has adamantly refused to comply with previous court orders that require her to return the child, in particular, return the child as a precondition to moving to set aside the divorce order. The wife has been given a previous opportunity by the Court to purge her contempt but has declined to do so. The husband argues that the Court should not hear the wife’s requests for a stay while she remains in contempt of court. She relied on Paul Magder Furs Ltd. v. Ontario (Attorney General), 1991 CarswellOnt 403 (Ont. C.A.) and Dickie v. Dickie, 39 R.F.L. (6th) 1 (Ont. C.A.), at para. 87, per Laskin J.A. (dissenting), reversed 39 R.F.L. (6th) 30 (S.C.C.). Justice Huscroft notes that the court has the discretion to refuse to hear an appeal by a litigant who has not purged a contempt order in the same proceedings. That remedy may also be invoked when the order appealed from is closely connected to an order or orders willfully breached. As Laskin noted in Dickie “in each case the court must consider whether hearing the appeal before the breach is cured would abuse the court’s process or impede the course of justice”.

As Justice Huscroft notes:

This case involves divorce and child custody proceedings that are intimately connected. The moving party is seeking equitable relief - an order to stay an Ontario divorce - while in contempt of Ontario court orders requiring her to return A to Canada. Should she succeed in staying the final divorce order, she would be free to pursue divorce and child custody/support proceedings on more favourable terms in Poland and then seek to have the order of the Polish courts enforced in Ontario. This would be manifestly unjust.

He goes on to find that the decisions of foreign courts do not sanction a refusal to comply with orders made validly by Canadian Courts. See in a similar vein the British Columbia case of Hughes v. Hughes, 49 R.F.L. (7th) 38 (B.C. C.A.), which Justice Huscroft has followed. The application for a stay was refused. This was the only possible result given the wife’s refusal to return the child to Ontario.

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