DATE: 20060629

DOCKET: C44809

COURT OF APPEAL FOR ONTARIO

RE:

SOTOS ASSOCIATES LLP (Applicant) – and – GOSSAMER INVESTMENTS LTD, MICHAEL NASH, BRUCE COULSON, PRESIDENT’S CHOICE FINANCIAL, LAWRENCE PERCIVAL SWEENEY (Respondents (Respondent in Appeal))

• and – ROYAL BANK OF CANADA and LOUISE HELEN HOCKEY-SWEENEY (Respondents (Appellant))

BEFORE:

CRONK, BLAIR JJ.A. and THEN J. (ad hoc)

COUNSEL:

Donald F. Bur and Lindsay Armstrong

for the appellant

Harold Niman and Deborah F. Zemans

for the respondent

HEARD & RELEASED ORALLY:

June 27, 2006

On appeal from the order of Justice Wilton-Siegel of the Superior Court of Justice, dated January 18, 2006.

E N D O R S E M E N T

[1] In our view, this appeal must be dismissed for the following reasons.

[2] First, the appellant acknowledges that the respondent is legally entitled to the funds now held in court, but for the appellant’s pending motion to have the funds stand as security for future spousal support payments. The appellant does not dispute that she is indebted to the respondent for an amount in excess of $850,000. The respondent, therefore, is simply attempting to enforce the trial judgment obtained by him, all appeals therefrom by the appellant having been exhausted.

[3] Second, the appellant contends that unless the motion judge’s order is set aside, she will be without any timely and effective remedy to enforce her entitlement to spousal support because the respondent now lives outside Canada and the funds in court represent his last remaining asset in Ontario. But the respondent is not in default of his monthly support payments, save for an amount to be paid retroactively based on an increase in spousal support ordered by this court that the respondent, on legal advice, claims that he is entitled to set off against the sums now owed to him by the appellant.

[4] Accordingly, the wife’s claim of a lack of a meaningful remedy is speculative. It presupposes breach by the respondent of the divorce judgment as amended by this court. On this record, there is no evidentiary basis for this supposition.

[5] Third, there is nothing to prevent the appellant from seeking to protect her future support payments, should this prove necessary, by requesting an order that the respondent post funds in Ontario to secure those payments. She has no legal right to enjoin the specific funds now held in court for that purpose.

[6] Fourth, we do not agree that the motion judge’s analysis of the matters in issue was flawed or that he erred in the exercise of his wide discretion to deny the adjournment. On this record, the effect of the requested adjournment, had it been granted, was to obtain what was tantamount to a stay enjoining payment out of court of the funds to which the respondent is entitled. In these particular circumstances, we see no error in the motion judge’s use of an ‘injunction-like’ analysis to resolve the adjournment request.

[7] Moreover, the appellant is not entitled to avoid the application of the principles set out in Kumar v. Kumar (1988), 63 O.R. (2d) 572 (H.C.J.) merely by restricting her claim for security to the particular funds now held in court.

[8] Finally, we note that the other grounds of appeal raised by the appellant in her factum were not pursued in oral argument.

[9] Accordingly, for the reasons given, the appeal is dismissed. The respondent is entitled to his costs of the appeal, if sought, on a partial indemnity basis, in the total amount of $15,000, inclusive of disbursements and Goods and Services Tax.

“E.A. Cronk J.A.”

“R.A. Blair J.A.”

“E.F. Then J. (ad hoc)”