Court of Appeal for Ontario
Gomery J.A. (Motion Judge)
Between
Julian Birtzu and Valentin Birtzu
Plaintiffs (Respondents/Responding Parties)
and
Constance McCron and the Estate of Constantin Birtzu
Defendants (Appellants/Moving Parties)
Counsel:
Sofie Hector, for the moving party
Christopher Stanec, appearing as amicus curiae, Pro Bono Ontario
Julian Birtzu, acting in person
No one appearing for Valentin Birtzu
Heard: June 3, 2026
REASONS FOR DECISION
1In 2019, this court granted Constance McCron’s appeal of the trial judge’s cost order following the dismissal of her brothers Julian and Valentin Birtzu’s action challenging the validity of their father’s will: Birtzu v. McCron, 2019 ONCA 777, 148 O.R. (3d) 603. This court ordered the brothers to pay $150,000 in trial costs and $10,000 in appeal costs.
2Efforts to enforce the costs orders have to date been unfruitful. Constance McCron assigned the debt to her law firm, Hull & Hull LLP. Although writs of seizure and sale were issued against the judgment debtors in 2020, the brothers could not be located for service until 2025. Julian Birtzu attended for an examination in aid of execution, but Valentin Birtzu did not. The existing writs cannot be enforced against the judgment debtors’ property because more than six years have passed since this court issued its judgment.
3Hull & Hull now seek the following orders in aid of execution:
(1) An order granting leave, pursuant to Rule 60.07(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to issue writs of seizure and sale against Julian Birtzu and Valentin Birtzu, in respect of this court’s October 2, 2019 judgment;
(2) An order compelling Valentin Birtzu to attend an examination in aid of execution;
(3) An order for partial indemnity costs fixed at $1,000 against both respondents; and
(4) An order validating service of the motion record on Julian Birtzu and Valentin Birtzu.
Analysis
4Rule 60.07 of the Rules of Civil Procedure provides that:
(1) Where an order may be enforced by a writ of seizure and sale, the creditor is entitled to the issue of one or more writs of seizure and sale (Form 60A), on filing with the registrar where the proceeding was commenced a requisition setting out,
(a) the date and amount of any payment received since the order was made; and
(b) the amount owing and the rate of postjudgment interest,
together with a copy of the order as entered and any other evidence necessary to establish the amount awarded and the creditor’s entitlement.
(2) If six years or more have elapsed since the date of the order, or if its enforcement is subject to a condition, a writ of seizure and sale shall not be issued unless leave of the court is first obtained.
5Rule 60.07(2) does not state that the same court that issued the order must grant leave. Moreover, although r. 60.07(2) does not specify what court may grant leave for a writ of search and seizure and sale after six years have elapsed, r. 60.07(1) refers to the registrar in the court “where the proceeding was commenced”. More generally, the term “court” is defined in r. 1.03(1) to mean “the court in which a proceeding is pending”.
6The proceeding in this case was not commenced in the Court of Appeal and there is no proceeding pending in this court.
7Whether or not this court nonetheless has the power to issue the orders sought here pursuant to r. 60.07, or any other rule, I find that this is not the appropriate court to grant the relief sought. The Superior Court routinely hears motions with respect to writs of seizure and sale and for orders to compel examinations in aid of execution. This court does not. In my view, Hull & Hull should file their motion in the Superior Court.
8Amicus also points out, correctly in my view, that the motion record is incomplete, as it does not adequately explain the delay in taking steps to enforce judgment.
9The motion is therefore dismissed, without prejudice to Hull & Hull’s right to file a motion for the same relief in the Ontario Superior Court of Justice, in Brampton.
“S. Gomery J.A.”