Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20241125 DOCKET: M55514 (COA-24-CV-1088)
Roberts J.A. (Motions Judge)
BETWEEN
Laura Christine Peddle Trop Applicant (Respondent/Responding Party)
and
Timothy Neil Trop Respondent (Appellant/Moving Party)
Counsel: George Karahotzitis and Camelia Amiri, for the moving party James B.C. Edney, for the responding party
Heard: November 14, 2024
Endorsement
[1]
Background
The moving party husband, Timothy Neil Trop, seeks a stay of paragraph 2 of the September 6, 2024 order of McKenzie J. pending the disposition of his appeal of that order. McKenzie J. ordered Mr. Trop to produce an updated financial statement to the responding party wife, Laura Trop, within 30 days.
2McKenzie J.’s order was made during a case conference in the family law proceedings instigated by Ms. Trop. On July 11, 2024, Mr. Trop filed an Answer and Financial Statement in which he challenged the jurisdiction of the court to hear Ms. Trop’s application. His jurisdiction motion was scheduled for hearing during the Welland sittings of November 18th. He maintains that the issues should be determined in Texas where he has commenced proceedings and where Ms. Trop has brought a motion to challenge the court’s jurisdiction over the dispute. I was advised that her jurisdiction motion in Texas is scheduled for hearing on January 14, 2025. Ms. Trop has also brought a motion to quash Mr. Trop’s appeal in this court on the basis that McKenzie J.’s order is final and not interlocutory. Counsel advised that motion has not yet been scheduled for hearing.
[3]
The Test for a Stay
The test for a stay is the same as for an interlocutory injunction. The moving party must satisfy the court that: 1) there is a serious issue to be tried on the appeal; 2) the moving party will suffer irreparable harm if the stay is not granted; and 3) the balance of convenience favours the stay: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. These criteria are not water-tight but rather involve interrelated considerations; the strength of one criterion may compensate for the weakness in another: Pannone v. Peacock, 2022 ONCA 520, at para. 8. The overarching consideration is whether the stay is in the interests of justice: Fatahi-Ghandehari v. Wilson, 2016 ONCA 921, at para. 19; Pannone, at para. 8.
[4]
Analysis
I am not persuaded that a stay is warranted in the circumstances of this case.
[5]
Serious Issue to be Tried
While the threshold for a serious issue to be tried is relatively low and I have no jurisdiction as a single judge to determine the issue of this court’s jurisdiction, I see little conceptual difference between the present case and the circumstances in Wachsberg v. Wachsberg, 2018 ONCA 508, where this court determined that an order requiring the production of financial statements was “clearly interlocutory”: at para. 8. See, also, M. v. H., [1996] O.J. No. 540 (Ont. C.A. – In Chambers), at paras. 1, 3.
[6]
Irreparable Harm
Mr. Trop has not satisfied me that he will suffer irreparable prejudice if the stay is not granted. He argues that his compliance with McKenzie J.’s production order will be treated as attornment to Ontario’s jurisdiction and render his jurisdiction motion moot. I disagree.
7First, compliance with court orders in the face of an ongoing jurisdictional challenge is not treated as attornment: see: Yaiguaje v. Chevron Corporation, 2014 ONCA 40, at para. 11, leave to appeal dismissed, [2018] S.C.C.A. No. 255. A party must take a voluntary step to indicate attornment to the jurisdiction: Sakab Saudi Holding Company v. Al Jabri, 2021 ONCA 548, at para. 34.
8Second, if Mr. Trop’s delivery of an Answer and Financial Statement is not attornment to Ontario’s jurisdiction, it is difficult to imagine that his compliance with an order to produce an updated version of the financial statement that he has already produced will be separately treated as attornment. The delivery of pleadings and productions to facilitate the efficient exchange of information in which a party clearly raises the issue of jurisdiction has not generally, without more, been treated as attornment: see, for example: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, at para. 31; Van Damme v. Gelber, 2013 ONCA 388, 115 O.R. (3d) 470, at paras. 22, 23, leave to appeal refused, [2013] S.C.C.A. No. 342; Sakab Saudi Holding Company, at paras. 27-29.
[9]
Balance of Convenience
The balance of convenience favours Ms. Trop. It is beyond well-established that a party has an ongoing obligation to provide financial disclosure and that complete and current financial disclosure is essential in family law proceedings. As this court confirmed in Roberts v. Roberts, 2015 ONCA 450, at paras. 11 and 12:
The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.
Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.
10Ms. Trop is entitled to financial disclosure notwithstanding the dispute over the court’s jurisdiction. As this court stated in Husid v. Daviau, 2012 ONCA 469, at para. 20, interim orders can be made without prejudice to a party’s right to dispute jurisdiction:
[The moving party] argues that he could not make the motion in the court below because that would amount to attorning to the court’s jurisdiction, the very matter he contests by way of the main appeal. I do not accept this argument. There are a number of access orders in place already. I understand that they were made without prejudice to the father’s right to maintain that he did not attorn to the court’s jurisdiction. If the existing access orders could be made on that basis, I see no reason why the present motion could not also be made on the same basis.
11Mr. Trop has not argued nor produced any evidence that he will not be required to make the same complete and current disclosure even if he is successful on his jurisdiction motion and the proceedings are adjudicated in Texas instead of Ontario. I see no prejudice to him by requiring his compliance with McKenzie J.’s production order.
[12]
Disposition
For these reasons, I dismiss Mr. Trop’s motion for a stay. Mr. Trop should have complied with the production order by October 7, 2024. He did not instigate this stay motion until October 31, 2024. His failure to comply with a court order is further reason to refuse the equitable remedy of a stay: Dickie v. Dickie, [2007] 1 S.C.R. 346, at paras. 4, 6.
13Mr. Trop shall comply with McKenzie J.’s production order within two weeks of the release of these reasons.
[14]
Costs
Ms. Trop is entitled to her partial indemnity costs of this motion from Mr. Trop in the all-inclusive amount of $5,000.
“L.B. Roberts J.A.” Released: November 25, 2024
