“This court has addressed the issue of non-compliance with family law judgments pending appeal in the cases of Brophy v. Brophy (2004), 45 R.F.L. (5th) 56 (C.A.); Dickie v. Dickie (2006), 78 O.R. (3d) 1 (C.A.), rev’d 2007 SCC 15, [2007] 1 S.C.R. 346 approving dissenting reasons of Laskin J.A. on this point; and Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257.
Most recently in Murphy, the court refused to hear the submissions of the responding party who was in default. In Brophyin 2004, the court discussed the alternatives when faced with this situation. One is to dismiss the appeal, another to adjourn pending compliance with the trial order. Although the court in that case then determined that it did not matter because there was no merit to the appeal, in our view, it is no longer the best practice to proceed in that way.
In our view, where an appellant wishes to be relieved of his or her trial ordered obligations pending appeal, the proper approach is to bring a stay motion where the circumstances can be brought before the court. If that is not done, then although the court may still hear the appeal in circumstances the court feels require that approach, the court will normally not hear the appeal until the trial order has been complied with.”