costs would be lifting of automatic stay of payment of equalization
payment rather than dismissal of appeal — Stay lifted — Rules of Civil
Procedure, R.R.O. 1990, Reg. 194, rule 61.06(1), (2).
The appellant appealed a trial decision in matrimonial litigation requiring him
to make an equalization payment to the respondent of more than $1 million and
to pay spousal support. The respondent brought a motion for an order lifting the
automatic stay of the equalization payment or, alternatively, for an order requiring security for the payment of the equalization if the appeal failed and an order
for security for the costs of the trial and the appeal. Blair J.A. was satisfied that
the appellant had assets in Ontario and that the appeal was not frivolous but
ordered the appellant to post security for costs under rule 61.06(1) of the Rules of
Civil Procedure on the basis that the respondent was entitled to relief but that a
“more balanced resolution” than lifting the automatic stay was appropriate. The
appellant failed to post security for costs. The respondent brought a motion for an
order dismissing the appeal under rule 61.06(2) of the Rules.
Held, the motion to dismiss the appeal should be dismissed; the automatic
stay should be lifted.
It was Blair J.A.’s intention that the sanction for the appellant’s failure to
post security for costs would be the lifting of the stay and not the dismissal of the
Dataville Farms Ltd. v. Colchester (County),  N.S.J. No. 543, 2014 NSCA
95, 351 N.S.R. (2d) 65, 246 A.C. W.S. (3d) 773, consd
Other cases referred to
Virc v. Blair,  O.J. No. 2813, 2016 ONSC 49, 80 R.F.L. (7th) 124, 267
A.C. W.S. (3d) 897 (S.C.J.)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.06, (1)(a), (b), (c), (2), (7)
MOTION for an order dismissing an appeal for failure to post
security for costs.
Bryan R.G. Smith and Sarah Conlin, for moving party.
Michael Finley and Lawrence Blair, acting in person.
 Endorsement of JURIANSZ J.A.: — This motion, brought by
the wife in long running family litigation, seeks an order dismissing the husband’s appeal for his failure to post security for
costs as required by the order of Justice Blair dated August 16,
2016. The order is sought under rule 61.06(2) of the Rules of
Civil Procedure, R.R.O. 1990, Reg. 194.
 Rule 61.06 provides:
SECURITY FOR COSTS OF APPEAL
61.06(1) In an appeal where it appears that,
(a) there is good reason to believe that the appeal is frivolous and
vexatious and that the appellant has insufficient assets in Ontario
to pay the costs of the appeal;