COURT OF APPEAL FOR ONTARIO

DATE: 20040726

DOCKET: C41421

RE: LORRI KUSHNIR (Petitioner/Wife/Respondent on Appeal) – and – DAVID LOWRY(Respondent/Husband)

BEFORE: CATZMAN, GILLESE and LANG JJ.A.

COUNSEL: Harold Niman for the appellant, Davis Innes LLP Frank Cesario for the respondent

HEARD: July 19, 2004

The appellant Davis Innes LLP appeals from the judgment of Justice Lorna‑Lee Snowie of the Superior Court of Justice dated February 24, 2004.

E N D O R S E M E N T

Released Orally: July 19, 2004

[1] During the course of matrimonial litigation between the petitioner wife, Lorri Kushnir, and the respondent husband, David Lowry, Ferrier J. made a non-dissipation order dated June 1, 2001 of which Lowry was the subject. By order of Ferrier J. dated June 11, 2002, again in the course of the matrimonial litigation, $1.4 million was paid into court as substituted security for Collingwood Capital Corporation. A further term of the order of June 11^th^ directed that if any of the $1.4 million in funds was to be released to Lowry or his corporate entities or his counsel, such monies were to be “immediately paid into court”. $200,000 of the $1.4 million in question was to go to one of Lowry’s companies, PGCC.

[2] Davis Innes LLP acted for Lowry in litigation that generated the $1.4 million that was paid into court pursuant to the June 11^th^ order.

[3] On May 5, 2003, Davis Innes LLP appeared before Master Dash, without notice to Kushnir, and with the consent of Lowry, obtained charging orders for its fees of $132,107.36. The materials before the Master did not disclose the orders in the matrimonial litigation. It is from the $200,000 that was to go to PGCC that Davis Innes LLP seeks to realise its claim for fees.

[4] Kushnir learned of the orders of Master Dash and obtained an order to have the funds paid into court as part of the matrimonial action.

[5] At the matrimonial trial, Davis Innes LLP moved for payment of its fees out of the funds held in court. By order dated February 5, 2004, Snowie J. dismissed Davis Innes LLP’s motion and ordered that the funds be paid to Kushnir.

[6] Davis Innes LLP appeals. It argues that the monies are subject to a charging order in its favour and ought to be paid to it in priority to Kushnir. In making this argument, Davis Innis LLP argues that the monies were going to Kushnir as part of an equalization payment and were, therefore, subject to its charging orders.

[7] We disagree with the premise that the funds were ordered to be paid to Kushnir as part of an equalization payment.

[8] Justice Snowie was not obliged to treat the $200,000 as funds available only for an equalization payment. She was entitled to treat the funds as being available for retroactive spousal support payments, which she did.

[9] In the circumstances of this case, it was open to Snowie J. to exercise her discretion and refuse to give the charging order priority over spousal support. See Taylor v. Taylor (2002), 60 O.R. (3d) 138 (C.A.).

[10] Accordingly, the appeal is dismissed with costs to the respondent fixed in the amount of $5500, inclusive of GST and disbursements.

“M.A. Catzman J.A.”

“E.E. Gillese J.A.”

“Susan Lang J.A.”