CITATION: Parker v. Parker, 2014 ONSC 3398
DIVISIONAL COURT FILE NO.: DC-13-515
DATE: 2014-06-05
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Jason Parker, Creditor/Appellant v. Frederick Parker, Debtor/Respondent and Broderick & Partners, Garnishee/Respondent
BEFORE: Justices Matlow, Swinton and Gray
COUNSEL: Ron Brady, for the Creditor/Appellant
Frederick Parker, Debtor/Respondent, in person
Zijad Saskin, for the Garnishee/Respondent
HEARD at Hamilton: June 4, 2014
E N D O R S E M E N T
[1] The appellant Jason Parker appeals from the order of Taliano J. dated November 21, 2013 in which the motions judge held that a Garnishee served against the law firm of Broderick & Partners was invalid and unenforceable.
[2] The motions judge gave two reasons for his decision. First, he held that the equities did not favour the appellant. Indeed, the appellant’s issuing of the Notice of Garnishment was described as “an oppressive step that should not be condoned by the court” (para. 14). Second, the funds held in trust by Frederick Parker’s lawyers were not garnishable, as the monies were not a debt owed by the law firm to Frederick.
[3] The motions judge erred in law in holding that the monies in the lawyers’ trust account were not subject to garnishment. This is not a case like Toronto Dominion Bank v. Cooper, Sandler, West & Skurka (1998), 37 O.R. (3d) 729 (Div. Ct.). In that case, the funds in the trust account were a retainer for legal services and, therefore, not a debt owed by the law firm to the debtor. Here, the funds in trust were advanced by Frederick to be paid to Jason to satisfy the mortgage debt. They could have been withdrawn by Frederick had he changed his instructions. Accordingly, the funds were subject to garnishment.
[4] However, the motions judge also based his decision on the equities of the case. Garnishment is an equitable remedy, as Nordheimer J. stated in 20 Toronto Street Holdings Ltd. v. Coffee, Tea or Me Bakeries Inc. (2001), 53 O.R. (3d) 360 (S.C.J.) at para. 5, where he quoted Halsbury’s Laws of England, 4th ed., vol. 17 at para. 539:
The court’s power to make a garnishee order, whether it is an order nisi or an order absolute, is discretionary. A garnishee order is basically an equitable remedy, and it may be refused where the attachment of the debt would work inequitably or unfairly or cause prejudice or injustice to some person or persons other than the judgment creditor.
See, as well, International Union of Painters and Allied Trades, Local 200 v. S & S Glass and Aluminum (1993) Ltd. (2004), 185 O.A.C. 38 (C.A.) at paras. 19-20.
[5] The motions judge reasonably exercised his discretion to declare the garnishee unenforceable based on the equities of this case as he saw them. He was very familiar with the circumstances of the case and the history of the parties, having been the trial judge in the mortgage action between them. At paras. 13 and 14, he stated:
[13] It is clear that the service of a Notice of Garnishee at a time when the father intended to pay off the mortgage ensures that relations between father and son will continue to be strained. Jason will inevitably recover the monies owing to him by his father in due course since he has a writ of execution registered. But this oppressive action against Fred and his family is unnecessary. For Jason to take such aggressive steps against his father who is suffering financial difficulties largely because he put himself out for his son, shows filial ingratitude that is not right. The equities in this case do not favour Jason.
[14] It should be noted that the mortgage rate of 10% contained in the mortgage is well in excess of the rate that applies to the judgment against his father. That being the case, Fred is entitled to pay off the more expensive debt secured by the mortgage in order to rearrange his affairs, barring any other legal impediments that have not been disclosed. The issuing of Notice of Garnishment to prevent that from happening was an oppressive step that should not be condoned by the court.
[6] The appellant has not shown that the motions judge exercised his discretion on a wrong principle or that he made any error of fact. We see no basis to interfere with his exercise of discretion.
[7] Accordingly, the appeal is dismissed. Costs of the motion and the appeal, in the total sum of $4,000.00 (as agreed upon by the parties), are payable by the appellant to the respondent Broderick & Partners.
Matlow J.
Swinton J.
Gray J.
Released: June 5th, 2014