DIVISIONAL COURT FILE NO.: 654/15
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Traikos v. Leyzac
BEFORE: Swinton J.
COUNSEL: Aaron Franks and Andrew Chris, for the Applicant (Responding Party)
Harold Niman and Jessica Brown, for the Respondent (Moving Party)
HEARD at Toronto: in writing
ENDORSEMENT
1The respondent Steven Leyzac seeks leave to appeal from paragraph 4 of the order of Kiteley J. dated November 25, 2015. In that paragraph, she ordered him to pay $100,000 for interim disbursements to the applicant - $50,000 payable by December 7, 2015 and $50,000 by January 4, 2016.
2The respondent relies on rule 62.02(4)(b) of the Rules of Civil Procedure, arguing that there is good reason to doubt the correctness of the decision. In particular, he argues:
He was denied natural justice, because he did not have sufficient notice that the disbursements issue was to be heard on the day of the motion hearing; he did not have an adequate opportunity to respond to affidavit evidence handed up by the applicant; and the motions judge improperly relied on information that was not properly in evidence.
The motions judge did not have jurisdiction to make the order, as Myers J. had made an order with respect to interim disbursements on November 19, 2015 as a condition of an adjournment. Myers J. ordered that a joint line of credit for $200,000 be obtained against the matrimonial home to be used for interim disbursements by both parties.
3The motions judge indicated that it was open to her to make an order respecting interim disbursements because the order of Myers J. had not been issued and entered. She pointed out that there were mortgages of $3 million against the matrimonial home, valued at $6 million. She also observed that the prospects of obtaining a $200,000 line of credit were “slim to none”, given the respondent’s reported income for tax purposes of $80,000 and the applicant’s income of about $9,000. Finally, she noted that the respondent’s affairs were complex, and the applicant clearly needed legal and accounting expertise to deal with the issues in this proceeding.
4I am not satisfied that there is good reason to doubt the correctness of the order. With respect to the fairness issues, the respondent had notice that interim disbursements would be an issue to be raised at the hearing. The applicant’s revised motion confirmation form dated November 24, 2015 indicated that interim disbursements would be an issue, along with interim spousal support and exclusive possession of the matrimonial home.
5With respect to evidence, the motions judge referred to information provided the evening before the hearing by the respondent himself. It disclosed the existence of two more corporations not revealed earlier and an $18 million loan agreement for a corporation that he had personally guaranteed in 2015. I see no prejudice to the respondent in these references, as he disclosed this information. The motions judge reasonably commented on it when discussing the complexity of his affairs, his role in making those affairs complex, and the applicant’s need for expert assistance.
6Furthermore, the respondent’s own affidavit showed that he had taken no steps to obtain a line of credit, and he believed it was the applicant’s responsibility to do so. The new affidavit from the applicant was only 4 paragraphs in length, stating that she had been to the bank and been informed of the need for both parties to apply for a line of credit. The respondent had the opportunity to make submissions on the affidavit in response to questions, as described in his factum. In my view, this is not a case where there is good reason to believe that there was a denial of procedural fairness.
7With respect to the motions judge’s jurisdiction to make the order, she stated that the order of Myers J. had not been issued and entered. He had explicitly stated that he was not seized, so the applicant was not required to return to him on the issue of interim disbursements.
8It is also important to look at the context in which both orders were made. The order of Myers J. was made in the course of a request for a contested adjournment where he was not adjudicating the merits. Kiteley J. was addressing the merits of the issues in the motion, including interim spousal support. She had evidence, including new information from the respondent, that led her to vary the earlier order respecting interim disbursements. This is not a case where the relief sought would be barred by issue estoppel, given the facts, the discretionary nature of the application of that doctrine, and the considerations in a family law context set out by Mesbur J. in Ludmer v. Ludmer, 2012 ONSC 4478 at para. 24. In sum, I see no reason to doubt the correctness of the order respecting interim disbursements in the circumstances of this case.
9The test in rule 62.02(4)(b) also requires the moving party to show that the proposed appeal raises questions of general importance. In my view, the order for interim disbursements is a matter of significant importance to the parties, but the appeal does not raise issues of general importance that should be considered by the Divisional Court, particularly in light of the delay that would be caused by an appeal of this interlocutory order.
10Accordingly, the motion for leave to appeal is dismissed.
11The applicant seeks costs on a full indemnity basis in the amount of $11,342.38, relying on the decision of the Court of Appeal in Berta v. Berta, 2015 ONCA 918. At para. 94, the Court of Appeal stated that a successful party in a family law case is presumptively entitled to full recovery costs, although consideration should also be given to the costs provisions in the Family Law Rules.
12Costs to the applicant are fixed at $10,000.00 all inclusive. This amount is fair and reasonable given the importance of the issue (particularly to the applicant), a comparison of the bills of costs of both counsel, and the extensive amount of material that had to be reviewed by the applicant’s counsel. This material included a reply factum served by the respondent late on January 14, 2016. That factum was not in compliance with the rules, as it was not really dealing with “new” issues raised in the applicant’s factum. Rather the reply factum either expanded on earlier arguments or made arguments that should have been anticipated by the respondent and addressed in the original factum. The one “new issue” raised by the applicant – the respondent’s failure to comply with court orders – generated no response in the reply factum.
13Accordingly, the motion for leave to appeal is dismissed. The respondent shall pay costs to the applicant fixed at $10,000 all inclusive, payable within 30 days.
Swinton J.
DATE: January 22, 2016