Court File and Parties

CITATION: Buttarazzi v. Buttarazzi, 2009 ONCA 361

DATE: 20090504

DOCKET: C48172

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Goudge and Rouleau JJ.A.

BETWEEN

Anthony Buttarazzi Applicant (Respondent)

and

Mara Buttarazzi Respondent (Respondent)

Marco Drudi, for the appellant, Peter Buttarazzi, as Estate Trustee for the Estate of Luigi Buttarazzi

Lorne Wolfson, for the respondent

Heard: April 28, 2009 On appeal from the order of Justice T. Maddalena of the Superior Court of Justice dated November 28, 2007.

ENDORSEMENT

[1] The appellant argues that the motion judge erred in directing the appellant (the husband’s late father’s estate) to deliver certain shares owned by the applicant husband to the respondent wife’s counsel for preservation and safekeeping in accordance with s. 12(b) of the Family Law Act.

[2] The shares were already subject to a preservation order made by Mesbur J. on November 25, 2004. The motion judge found that the husband had arranged for delivery of the shares to the appellant in complete disregard of the order of Mesbur J. Moreover, the appellant acknowledged that it received the shares with prior knowledge of that order.

[3] On March 31, 2005, the appellant obtained a money judgment against the husband with the proviso that, absent consent of the husband or further court order, it could not be executed. Subsequently, the appellant obtained a consent judgment permitting it to execute on the judgment. The appellant argues that the order under appeal stays the execution of the judgment. We disagree. The order simply does what it says that is, it directs that certain shares owned by the husband be delivered to and held by the wife’s solicitor for preservation and safekeeping. To date, the appellant has not taken steps to execute upon the judgment. It did not obtain a writ of search and seizure, rather it received the husband’s shares as a result of a voluntary act by the husband an act found to be in breach of Mesbur J.’s order. The question whether the appellant could execute against the shares while subject to what are now two preservation orders, has not been determined.

[4] The appellant also argues that the order under appeal constitutes a collateral attack on the judgment allowing it to execute on the appellant’s judgment. Again, we disagree because, as pointed out above, the order under appeal does not stay execution and thus is not inconsistent with the earlier judgment allowing execution.

[5] Subsequent to making the order under appeal, the motion judge, on the request of counsel, issued a letter responding to a request for clarification. Although the letter may suggest otherwise, the order under appeal does not purport to determine priorities between the appellant and the wife concerning the shares. The wife did not request such an order in the notice of motion leading to the motion judge’s order. The order itself does not do so. Nor does the motion judge offer any reasons supporting a conclusion with respect to the respective priorities of the estate and the wife to the shares. We, therefore, conclude that the question of priority as between the appellant and the wife has not been decided in these proceedings.

[6] Further, it may well be that the wife could obtain a stay of execution against the shares pending trial and thereby make those shares available to secure all or part of a judgment in her favour. However, that issue will have to be determined on a proper application with proper material. We did not consider that on the material before us and without the benefit of any reasons from the motion judge on the issue of priority, that we were in a position to make such a determination.

[7] The appellant has not succeeded on any of its attacks on the order below. The appeal is dismissed. The appellant shall pay the respondent’s costs of this appeal fixed in the amount of $25,000, inclusive of disbursements and GST.

“Dennis O’Connor A.C.J.O.”

“S.T. Goudge J.A.”

“Paul Rouleau J.A.”