Court of Appeal for Ontario

Citation: Serra v. Serra, 2007 ONCA 465

Date: 2007-06-26

Docket: M35001 (C46745)

Before: Rouleau J.A. (In Chambers)

Between:

Harold Keen Serra Appellant

and

Barbara Serra Respondent/Moving party

Counsel: Nancy J. Iadeluca for the appellant James C. Morton for the respondent

Heard and endorsed: June 18, 2007

Endorsement

[1] This is a motion to stay the appeal. The moving party submits that the appellant has paid very little by way of support as ordered by the trial judge and based on Dickie v. Dickie (2006), 2006 576 (ON CA), 78 O.R. (3d) 1, this court should exercise its discretion to order a stay of the appeal. The responding party (appellant) argues that the motion must be brought to a panel of three judges and that, in any event, there is no basis on the facts of this case to order a stay.

[2] On the issue of jurisdiction I agree with the appellant. On the facts of this case, accepting the evidence filed by the appellant, he is unable to make the full amount of the support payments ordered and, therefore, a stay would effectively dispose of the appeal. This, in my view would bring this motion within Rule 61.16(2.2) which provides that a motion in the Court of Appeal that finally determines an appeal is to be heard by three judges. Although it is true that the motion would not determine the appeal on the merits it has, in essence the same result.

[3] In addition, the relief sought here is pursuant to s. 140(5) of the Courts of Justice Act. Here the authority to stay a proceeding as an abuse of process is granted to the "court" which, as appears from s. 7 of the Courts of Justice Act and this court's decision in R. v. Church of Scientology (1986), 1986 4633 (ON CA), 25 C.C.C. (3d) 149 should be taken to be a panel of three judges.

[4] In any event, I would have dismissed the motion on the merits. This is not a situation similar to that which existed in Dickie v. Dickie. In the present case, the appellant's failure to pay the full amount of the support payments has been explained. Absent cross-examination or other evidence showing his explanation to be false or misleading, it is sufficient to explain why he is not complying. It is not a case where the appellant is shown to have the means and simply refuses to comply. In the present case, the appellant has been paying approximately $3,750.00 per month and his counsel indicates that he intends to continue paying as much as he can afford. The appellant does not appear to have a lavish lifestyle and is endeavouring to salvage his textile business which is the principal asset available.

[5] For these reasons, I dismiss the motion.

[6] As to costs, the responding party requests $11,050.50 in costs and submits that they should be paid at the conclusion of the appeal. The moving party submits that there should be no costs. The moving party notes that the appellant has simply neglected to pay the support that was ordered and should, if he was unable to pay, have brought a motion to stay or partially stay the support order. He did not and, therefore, it was reasonable to bring this motion. In the circumstances, I make no order as to costs.

"Paul Rouleau J.A."