COURT OF APPEAL FOR ONTARIO

DATE: 20160530

DOCKET: M46132 (C61647)

Tulloch J.A. (In Chambers)

BETWEEN

Hayley Barber

Applicant

(Respondent/Moving Party)

and

Neil Magee

Respondent

(Appellant/Responding Party)

Michael J. Stangarone and Ryan M. Kniznik, for the moving party

Neil Magee, in person

David Quayat, duty counsel

Heard: March 2, 2016

ENDORSEMENT

[1] Ms. Barber moves for an interim order, pending disposition of Mr. Magee’s appeal, restraining him from selling, assigning, pledging, disposing of, encumbering, depleting or otherwise dealing with a specific property in Milton, Ontario. She also moves for an order lifting the automatic stay of the judgment under r. 63 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to the extent that it is necessary to obtain her interim order.

[2] For these reasons, I am granting Ms. Barber’s motion.

Background

[3] In the judgment under appeal, released December 23, 2015, Fitzpatrick J. awarded Ms. Barber an equalization payment of $56,510 plus prejudgment interest.

[4] At the same time, he declined to make a vesting order for the Milton property. He found Mr. Magee’s actions in registering a mortgage in favour of his parents for roughly the full value of the property suspicious – it happened shortly after this litigation began, there was an absence of any proof of an advance, Mr. Magee acknowledged making no payments towards the mortgage, his father’s name was misspelled, and he could not name the lawyer who acted for him.

[5] However, in Fitzpatrick J.’s view, the evidence did not rise to the level that it convinced him that the mortgage was illegitimate. He was unable to find that the payment order would not be complied with in the absence of the more intrusive measure that the vesting order provided.

[6] Before that judgment was delivered, Ms. Barber had obtained, on consent, a preservation order from the Superior Court that restrained Mr. Magee from “encumbering, selling or depleting in any way” the Milton property. That order stated that it would continue “until further Order of this Court”.

[7] On February 16, 2016, following the release of Fitzpatrick J.’s costs endorsement, in which he ordered Mr. Magee to pay costs of $35,000, Mr. Magee wrote to Fitzpatrick J.’s judicial assistant. He asked whether the April 9, 2015 preservation order was affected by the judgment being rendered. Fitzpatrick J.’s judicial assistant wrote back advising that Fitzpatrick J. said that the judgment nullified any order made pending the release of that decision.

[8] The current motion seeks to maintain the status quo that the earlier preservation order had provided pending the disposition of the parties’ rights in this matter.

Discussion

[9] In my view, that status quo should be maintained.

[10] The preservation order was made under ss. 12 and 40 of the Family Law Act, R.S.O. 1990, c. F.3. Section 12 provides that the court may make interim or final orders restraining the depletion of a spouse’s property, and for the preservation of the property, among other things, if the court considers it necessary. Section 40 concerns support obligations, and would appear not to be relevant to this motion.

[11] The purpose of s. 12 is to ensure that a spouse has sufficient assets to satisfy an equalization entitlement owing to the other spouse: Lasch v. Lasch (1988), 1988 CanLII 4581 (ON SC), 64 O.R. (2d) 464 (H.C.). Here, the property is Mr. Magee’s sole asset of any significance. Were he to deplete it, it may impair or defeat Ms. Barber’s claim for an equalization payment.

[12] The risk of depletion appears to be real. In my view, while Mr. Magee’s suspicious behaviour did not rise to the level needed to satisfy Fitzpatrick J. that a vesting order was appropriate, it is still supportive of the need for a preservation order. I am satisfied that the preservation order is necessary for the protection of Ms. Barber’s interests.

[13] The balance of convenience favours Ms. Barber. This order will merely maintain the status quo that has existed between the parties. To me, it does not make sense that the asset would be preserved for Ms. Barber’s benefit until she was successful at trial, yet then become subject to depletion before she is able to realize her award because Mr. Magee’s appeal automatically stays the judgment.

[14] Mr. Magee has provided little in support of any inconvenience this order would cause him. In the hearing before me, Mr. Magee raised for the first time that he wishes to leverage the property to further his appeal. He has provided no concrete details or evidence on the amounts he would need, or why, in fact, he needs to leverage the property to fulfill that need. I am not prepared, on the record before me, to recognize that the order sought would cause him any legitimate inconvenience, although I do not wish to foreclose his ability to leverage his property if he is able to establish that it is appropriate to do so.

Disposition

[15] Accordingly, the motion is granted for an order restraining Mr. Magee from encumbering, selling or depleting in any way the Milton property. It is without prejudice to Mr. Magee’s right to move for relief from this order pending the determination of his appeal. There is no need for me to lift the automatic stay of the judgment in order to grant the Ms. Barber’s requested relief, and I decline to do so.

“M. Tulloch J.A.”