Court of Appeal for Ontario

Citation: Bush v. Mereshensky, 2007 ONCA 679

Date: 2007-10-04

Docket: C46170

Between:

Riva Bush

Respondent

And

Yakov Mereshensky

Appellant/Applicant

Counsel:

Nicholas A. Xynnis duty counsel

Susan G. Ficek for the Crown No one appeared on behalf of Mrs. Bush

Heard: September 17, 2007

On appeal from the endorsement of Justice Nancy L. Backhouse of the Superior Court of Justice dated September 14, 2006.

Endorsement

[1] The appellant appeals a finding of contempt made against him by Backhouse J., September 14, 2006 and the two month term of imprisonment imposed as the result.

[2] The appellant initiated his appeal during his incarceration and as the result his appeal was listed as an inmate appeal of a criminal matter. In fact, the appeal concerns a civil finding of contempt.

[3] On June 29, 2006 Jarvis J. made an order, without notice to the appellant that he:

• pay $317,000 (USD) into court pending a determination of title between spouses;
• on an interim basis, be directly and indirectly restrained from depleting any property in his control;
• on an interim basis, be restrained and enjoined, directly or indirectly, personally or through others from concealing, dissipating, selling, removing, assigning, transferring, disposing, lending or encumbering in any way any property in his name or in which he is a signatory;
• on an interim basis all bank/brokerage accounts in the appellant’s name or in which he is a signatory be frozen and an order enjoining the appellant from withdrawing, transferring, dissipating, selling, liquidating or encumbering any funds/assets from any of said accounts until further order;
• provide the applicant wife with a full written accounting of all funds or assets withdrawn or transferred over the past 60 days within 10 days of service of the order on him;
• be prohibited from signing his wife’s name on any document or in any capacity without her prior written consent or a court order;
• pay costs fixed in the sum of $5000.

[4] Jarvis J. ordered that the matter be returned July 13, 2006 on notice to the appellant. On that date the matter came on before Croll J. who noted that the appellant was seeking legal aid and required a Russian translator. Further, she noted the appellant advised his wife’s counsel that he had spent approximately $400,000 (USD) taken from the Florida bank account which sum included $317,000 (USD) which the wife claimed as her own. He refused to disclose how he’d spent the money.

[5] Croll J. ordered that the June 29, 2006 order of Jarvis J. with respect to the freezing of the appellant’s bank accounts with the exception of one account to which the wife did not object be continued. She further ordered the appellant to appear for questioning with or without counsel on Friday, August 11, 2006, particulars of time and location to be provided by wife’s counsel. The appellant was to serve and file a completed financial statement and answer no later than August 4, 2006. The appellant was ordered to pay costs of $1000.

[6] As the appellant failed to comply with the orders of Jarvis J. and Croll J., the wife moved for a finding of contempt before Backhouse J. It is the order rendered on that occasion which is the subject of the within appeal.

[7] In her reasons the motion judge noted the appellant’s failure to comply with earlier orders specifically:

• he had not provided a full written accounting of all funds or assets withdrawn or transferred by him in the 60 days proceeding June 29, 2006,
• he had not paid the $317,000 (USD) into court,
• despite his then counsel’s assurance to his wife’s counsel that he was aware of the date, time and place for questioning, he failed to attend,
• the financial statement filed did not account for the funds taken,
• he did not deny taking the money and says he gambled the money away but refused to provide and verification of the fact, and
• he had not paid costs orders made against him.

[8] The motion judge found that the appellant had acted in “flagrant disregard” of court orders and that he deliberately and knowingly breached the court’s orders beyond a reasonable doubt. Earlier cost sanctions imposed against him were similarly ignored.

[9] The suggestion was raised that the finding of contempt may be an interlocutory order rather than a final order in which case this court would be without jurisdiction to entertain this appeal.

[10] We disagree. This court has consistently held that a finding of contempt is a final order. See Bassel’s Lunch Ltd. v. Kick et al., [1936] O.R. 445; International Beverage Dispenser’s Union Local 280 v. Kilgoran Hotels Ltd.(c.o.b. Brunswick Hotel), [1970] O.J. No. 389.

[11] In our view, the findings of the motion judge are amply supported by the record before her and we see no error in her finding of contempt against the appellant.

[12] Nor are we persuaded that a sentence of 60 days is manifestly unfit in the circumstances. The appellant was, as the motion judge noted, in flagrant violation of court orders and earlier sanctions imposed had been ineffective. In the circumstances a short period of incarceration was required.

[13] Finally, we note that the appellant is currently on parole as a result of a further order made by Backhouse J. on April 26, 2007 since she found he was still in contempt of the order of Jarvis J. The appellant has not appealed that order and so its validity was not in issue on this appeal. If he wishes to appeal that order, he should take steps immediately to do so. We would hope that Legal Aid Ontario would be able to assist him in that respect given that he has difficulty with the English language.

[14] The appeal is dismissed.

“Rosenberg J.A.”

“E.E. Gillese J.A.”

“J. MacFarland J.A.”