Silver v. Silver, 2015 ONSC 557

CITATION: Silver v. Silver, 2015 ONSC 557

DIVISIONAL COURT FILE NO.: DC-14-2049

DATE: 2015/01/26

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Stephen Silver

Appellant and Moving Party

– and –

Simi Silver

Respondent in Appeal and

Responding Party

Timothy N. Sullivan, for the Appellant and Moving Party

Michael Rappaport, for the Respondent in Appeal and Responding Party

HEARD: January 23, 2015

ENDORSEMENT

RATUSHNY J.

1The moving party has appealed that part of the Order of McLean J. dated June 3, 2013 (the Order) dismissing his claim for spousal support and costs.

2The moving party now seeks a lifting of the stay imposed by operation of Rule 63.01(1).

3Under Rule 63.01(1), the delivery of a notice of appeal from a final order “stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order.”

1. Brief Background Facts

4The Order was the result of a ten-day trial.

5The Order did not award spousal support or costs to either party. On appeal (the supplementary notice of appeal regarding costs is dated August 23, 2013), the appellant/moving party seeks spousal support of $31,008.00 per annum retroactive to April 15, 2011 and costs of the trial in the amount of $171,147.86.

6The Order dealt with custody and access of the five children of the marriage; child support; property division and net family property equalization; spousal support; and a divorce was granted.

7Under the Order:

1. The parties were granted joint custody of the five children ranging in age from 9 to 18 years with detailed access terms. The children’s primary residence was ordered to be and is with the responding party;

2. The moving party was ordered to pay Guideline child support in the total amount of $1750.00 each month commencing the date of the Order together with 26% of s. 7 child expenses;

3. A few pieces of property were ordered conveyed;

4. A Net Family Property adjustment of $493,000.00 (the NFP Amount) was ordered payable by the responding party to the moving party, “payable within ten years and joint property which cannot be agreed to be divided or transfer in kind, otherwise it shall be sold in the normal course with directions to be given by the Master”;

5. No spousal support was awarded to either party.

8In October 2014, less than two months after the moving party’s notices of appeal of the Order and the resultant automatic operation of Rule 63.01(1), notices of garnishment were issued and filed by the moving party against two corporate holdings owned by the responding party and one bank account in her name. The moving party explains in paragraph 29 of his affidavit sworn November 13, 2014 that the notices of garnishment are related to unpaid costs orders and the NFP Amount.

2. Positions of the Parties on this Motion

9The moving party submits the automatic stay imposed by operation of Rule 63.01(1) has no practical application and should, therefore, be lifted. He argues that his appeal of the Order in relation to spousal support and costs that awarded him no amounts, has nothing to do with the primary issue before the parties at this time, being the NFP Amount payable to him by the responding party within ten years of the Order.

10In other words, he says, the Rule 63.01(1) stay order stays everything when his appeal does not deal with everything. He relies on Oswell v. Oswell (1991), 1991 7084 (ON CA), 2 O.R. (3d) 145 (Ont. C.A.) (Osborne J.A. in Chambers), and submits that because there will be no impact on the NFP Amount as a result of his appeal, the NFP Amount should not be held “hostage”, quoting from Oswell, pending the disposition of the appeal.

11The responding party opposes the lifting of the stay and relies on Rule 63.01(5), allowing for an “order, on such terms as are just.” The responding party relies on SA Horeca Financial Services v. Light, 2014 ONCA 811, at para.13, and three principal factors to be considered in relation to a request to lift a stay: (i) financial hardship to the respondent if the stay is not lifted; (ii) the ability of the respondent to repay or provide security for the amount paid; and (iii) the merits of the appeal.

12The responding party adds two additional factors used by Osborne J.A. in Oswell, namely, a consideration of what has happened since the trial and the general circumstances of the case.

13The responding party submits that if the stay is lifted she will not have security in the form, I presume, of a set-off from the NFP Amount for costs, and for arrears of child support and s. 7 expenses that take precedence over the NFP Amount.

14Based on all of these factors including the moving party’s appeal that the responding party says is frivolous and vexatious and continues his pattern of vexatious conduct to date, the responding party argues the motion to lift the stay pending appeal be dismissed.

3. Analysis

15Rule 63.01(5) involves the exercise of this Court’s discretion in deciding whether to lift the stay according to “terms as are just.” It is on this basis that I understand the factors referred to in Oswell and SA Horeca to be relevant in the exercise of my discretion.

16It became clear from the submissions of counsel on this motion that the ten-year period for the payment of the NFP Amount under the Order is contributing to the present financial disputes between the parties.

17Paragraph 10 of the Order states,

The Net Family Property adjustment of $493,000 is payable by Respondent to the Applicant, payable within ten years and joint property which cannot be agreed to be divided or transfer in kind, otherwise it shall be sold in the normal course with directions to be given by the Master.

18The parties inform me they are before Master Roger in respect of the notices of garnishment from the moving party and that this issue is to be returned to him on January 27, 2015 as he attempts to carry out that part of the Order in its para. 10 that says, “joint property which cannot be agreed to be divided or transfer in kind, otherwise it shall be sold in the normal course with directions to be given by the Master.”

19The moving party has explained that if the stay is lifted as he requests, the garnishment hearing will be able to proceed and Master Roger will have a free hand to resolve that part of the Order dealing with joint property.

20The problem with the moving party’s position is that he triggered the automatic stay by his delivery of notices of appeal from the Order. Of course it is his right to appeal; however, he then ignored the automatic stay that commenced in July and August 2013 and since then has taken multiple steps to enforce the equalization represented by the NFP Amount, not only in direct contravention of the stay in effect but also to enforce the NFP Amount that is not yet due.

21The moving party’s latest enforcement attempt is the filing of notices of garnishment against the respondent’s property that is not part of the joint property being dealt with by Master Roger under para. 10 of the Order. Even if, as the moving party explains in paragraph 29 of his affidavit sworn November 13, 2014, the notices of garnishment are related to unpaid costs orders and the NFP Amount, the garnishments are a deliberate contravention of the stay as it relates to the NFP Amount. Paragraph 10 of the Order in respect of the NFP Amount is clearly “a provision for the payment of money” under Rule 63.01(1).

22In effect, the moving party now requests that this Court relieve him of the consequences of his own actions, namely the pursuit of the NFP Amount that is not yet due and that is contrary to the stay. I interpret this as amounting to a request from the moving party that this Court condone his flaunting of the operation of the stay and condone his premature enforcement of the NFP Amount not yet due. This is a strong reason to decline to grant the moving party’s request to lift the stay.

23There are other issues to consider that in my view, together with the notices of garnishment filed during the stay period, amount to markers of bad faith conduct by the moving party since the time of the Order.

24A second marker is the moving party’s failure to pay any child support since at least the date of the Order. The responding party says the child support arrears amount to $33,000.00 at this time and the moving party has paid nothing towards the children’s extraordinary expenses. The moving party does not deny he has failed to pay child support. He disputes that he has paid nothing towards the extraordinary expenses. There is no evidence of any illness or disability preventing him from obtaining employment or of any attempts to obtain employment.

25A third marker is the moving party’s refusal to serve an updated financial statement since the Order.

26A fourth marker is the moving party’s motion in April 2014 to list the matrimonial home for sale, being one of the jointly held properties, before the Order was settled and after the responding party, in February 2014, had consented to its being listed for sale provided the balance of the proceeds of sale were held in trust pending final agreement on support arrears, section 7 expenses owed and the equalization payment. Justice Linhares de Sousa dismissed the moving party’s motion, indicating in her endorsement, “This motion should not have been brought before the order of Mr. Justice McLean was finalized and entered.”

27A fifth marker is related to the first but involves additional egregious behaviour, namely the moving party’s filing of two writs of execution and six notices of garnishment after the responding party had requested and obtained a date for a motion for directions to address the NFP Amount.

28A sixth marker is a confluence of developments detrimentally affecting financial issues including the NFP Amount that is payable but not yet due by the responding party, whereby both jointly owned properties managed by the moving party to generate income have been placed at risk of power of sale proceedings for non-payment of property taxes and/or mortgage, together with the moving party having been fired from his employment in October 2013 and remaining unemployed. The responding party alleges he is deliberately unemployed. A possible inference from these developments, in addition to the moving party’s failure to pay any child support and attempts to enforce the equalization before it is due, is that the moving party is acting in bad faith so as to deplete the responding party’s finances.

29An seventh marker is that I do not understand the appeal issues of spousal support and costs to be disconnected from the NFP Amount as the moving party submits. I have access only to the Order and not to the transcript of McLean J.’s oral reasons for it, however, I think it reasonable to presume that the NFP Amount ordered payable to the moving party was a contributing factor in his dismissing the moving party’s spousal support claim at trial, and that all the financial issues are intertwined.

30Finally, the responding party submits the moving party’s appeal has no merit. From my limited knowledge of the issues at trial that led to the Order together with the events that have followed the Order, I would not disagree.

4. Conclusions

31It is for these reasons I exercise my discretion not to lift the stay as it would not be “just” to order that the stay not apply as the moving party requests and thereby serve to condone the bad faith actions he has taken since the Order.

32The moving party’s motion is dismissed. The stay pursuant to Rule 63.01(1) remains in effect.

33For the purposes of clarity, the stay applies to “any provision for the payment of money” in the Order and that includes the NFP Amount in para. 10, except that the stay does not apply, firstly, to that part of para. 10 of the Order as follows: “joint property which cannot be agreed to be divided or transfer in kind, otherwise it shall be sold in the normal course with directions to be given by the Master”. Secondly, the stay does not apply by operation of Rule 63.01(1) to “a provision that awards support or enforces a support order” in the Order and this includes the Order’s provisions for child support and s. 7 child expenses.

34Costs are awarded to the responding party. If the parties are unable to agree on their quantum, written costs submissions of a maximum of three pages from each party exclusive of attachments may be forwarded to me before February 20, 2015.

Ratushny J.