Court File and Parties
DIV. COURT FILE NO.: TBA SCJ FILE NO.: FS-15-047776-01 (Newmarket) DATE: 20200512 SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO
RE: Aslezova v. Khanine
BEFORE: D.L. Corbett J.
COUNSEL: Eli Karp – for the Respondent/Appellant Paul Mazzeo – for the Applicant/Respondent
CASE MANAGEMENT ENDORSEMENT
[1]
Scheduling
The appeal of the final order of G. Macpherson J. shall be heard on June 30, 2020, by ZOOM videoconference. Directions for this appeal shall be set out in a separate endorsement.
[2]
Stay Pending Appeal
The appellant asks for a stay pending appeal, and asks this court (a) to schedule a stay motion pending the appeal; and (b) to grant an interim stay pending decision on the interlocutory stay motion.
3The three part test for a stay is set out in RJR Macdonald. I presume, without finding, that there is a serious issue to be argued on the appeal. Certainly there is a serious issue to be argued over whether a stay should be granted.
[4]
Irreparable Harm
The second branch of the test is the issue of irreparable harm. I am not satisfied that there will be irreparable harm. It is true that if the house is sold, Mr Khanine will not be able to retain it. But he can buy another house. I appreciate that the house is special to Mr Khanine, but the law has moved a long ways from the presumption that there is unique value in real property. This is not a property that has been in the family for generations. Mr Khanine has been out of the property for nearly three years, and indeed has been out of the country for most of that time. While I do not doubt the claim that Mr Khanine has an emotional attachment to the property, that is not a reason to hold up the orderly process of the family law litigation.
5The applicant has an offer in hand for $3.91 million. The real estate market is volatile as a consequence of COVID-19. There is risk the offer will be lost if there is material delay, and certainly that risk will rise if it appears that the real estate market is falling further, a prospect that is certainly possible in these unsettled times. The issue is not whether there will remain sufficient assets to pay her claims, if she succeeds, but rather the extent to which this family’s affairs continue to be tied up as their matrimonial litigation drags on. Mr Khanine’s contribution to monthly household expenses has been irregular – and – remarkably – he did not pay his share of mortgage and tax expenses for April 2020. I appreciate that the bank has deferred current payments for six months as a result of COVID-19, but those payments continue to accrue on a large mortgage – forcing the applicant to continue to shoulder that burden jointly is not reasonable. In sum, I am not satisfied that there will be irreparable harm to the respondent/appellant, and I do see irreparable harm to the respondent/applicant if the offer is not accepted.
[6]
Balance of Convenience
As to the balance of convenience, I am consider that the appellant/respondent’s delay in seeking a stay order militates strongly against granting an interim stay now. The sale order was made on March 6th. In the ordinary course an appeal had to be brought within thirty days. As a practical matter, though, with an order such as that, an appeal should have been brought, and an order for a stay order brought, as soon as reasonably practicable. Instead, the appellant/respondent failed to respond to suggestions about a rea estate agent and a listing price, and did not take steps respecting an appeal until the applicant/respondent moved for directions back before the motions judge, and only then were steps initiated to bring an appeal and to move for a stay. The delay in taking these steps prejudiced the prcess ordered by the motion judge, and put this court in the position of having to decide the interim stay motion on virtually no materials, with no practical opportunity for the applicant/respondent to file responding materials.
7I appreciate that circumstances have been difficult – for both sides and indeed for the court. Nonetheless, I am satisfied that the appellant/respondent has deayed taking steps in this court to the prejudice of the overall process, and that this delay should weigh against him in the balance of convenience as to whether to grant the equitable remedy of an interim stay.
[8]
Disposition
The request for an interim stay is denied, without prejuice to the appellant/respondent moving for an interlocutory stay, if he so wishes, if the issue does not become moot in the meantime. If the appellant/respondent does so move, he may arrange a teleconference to schedule the motion as soon as he has delivered his motion materials.
9The court has endorsed its fiat on this endorsement this day; the unsigned version distributed to the parties today has the authority and effect of the signed version, a copy of which will be provided to the parties in due course after the suspension of ordinary court operations is lifted.
D.L. Corbett J.
Date: May 12, 2020