What is the test for a stay of proceedings under section 106 of the Courts of Justice Act?

Ontario, Canada


The following excerpt is from Gauthier v Lahey, 2015 ONSC 4696 (CanLII):

In Andrews v. Andrews, in 2000, the payor husband was in arrears of spousal and child support and was ordered to give security for costs in the event of a future default. He complied with that order. However, he then did not make further support payments. Subsequently, the wife moved for a stay of proceedings under s. 106 of the Courts of Justice Act. The question before Nelson J. was what test to apply on the stay application. Nelson J. determined that the test was one of fairness, and continued: While there are no hard and fast rules to follow, I believe it is incumbent on a judge to review the history of the matter in order to determine whether or not the parties have behaved reasonably and fairly towards one another. In this case, it is readily apparent that the applicant has engaged in litigation without any thought as to the consequences of his actions. His conduct in disobeying court orders and acting in an unreasonable fashion with respect to payment of his support and cost obligations militate against deciding in his favour.[9]

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