“An order that is not stayed automatically may be stayed pursuant to r. 63.02(1) of the Rules of Civil Procedure. The test for staying an order pending appeal is established in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. The test requires the court to determine whether a stay is in the interests of justice considering the following three factors:
(1) a preliminary assessment of the merits to ensure that there is a serious question to be tried;
(2) whether the applicant would suffer irreparable harm if the application were refused; and
(3) an assessment of the balance of inconvenience as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
The relative strengths of these factors need not be equal, but all three factors must be satisfied for the court to grant a stay: Carvalho Estate v. Verma, 2024 ONCA 222, at para. 5; R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12. I will analyze each factor in turn.
First, when making a preliminary assessment of the merits, the court must keep in mind the standard of review on appeal: Carvalho Estate, at para. 8. Absent an error of law or a palpable and overriding error of fact, the trial judge’s decision will be upheld on appeal: Carvalho Estate, at para. 8; Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 104. However, the threshold for finding a serious issue is low: Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859, at para. 9. The Supreme Court of Canada in RJR-MacDonald Inc., at p. 337-38, noted:
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial.”
…
Second, irreparable harm is characterized by its nature, rather than its magnitude. In other words, it is usually harm that cannot be quantified or cured: RJR-MacDonald Inc., at p. 341. Although Michael spoke about his ongoing financial difficulties, he did not demonstrate that paying child support would result in “permanent and non-compensable harm”: Temagami, at para. 11.
Finally, when assessing the balance of convenience, the court on a stay motion must recognize that the matter was previously adjudicated and the order must be regarded as prima facie correct: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 678, citing Battle Creek Toasted Corn Flake Co. v. Kellogg Toasted Corn Flake Co. (1923), 55 O.L.R. 127 (C.A.), at p. 132. The interests of third parties might also be relevant at this stage: Ducharme v. Hudson, 2021 ONCA 151, at para. 25. In staying the child support order, the parties who would suffer are the children.”