Court of Appeal for Ontario

Citation: Martyn v. Martyn, 2016 ONCA 726

Date: 2016-10-04

Docket: M46148 (C52125)

Judges: Simmons, LaForme and Pardu JJ.A.

Between:

Lori Martyn Applicant (Respondent/respondent)

and

Robert Martyn Respondent (Appellant/moving party)

Counsel: Eric D. Freedman, for the moving party Andreus Snelius, for the respondent

Heard: September 26, 2016

On motion to lift the stay of appeal imposed on November 1, 2010.

Endorsement

[1] At the conclusion of the oral hearing, we dismissed this motion for reasons to follow. These are our reasons.

[2] The appellant husband moved to lift a stay of his appeal that was imposed on November 1, 2010. The underlying appeal is from a contempt order made in this matrimonial proceeding.

[3] The stay order required that the appellant fulfill three conditions: i) serve and file an up to date financial statement; ii) provide a response to a February 2009 request for information from the wife (the “Request”); and iii) provide any documents given to the government of the Bahamas in support of any permit or authorization permitting him to live or work in the Bahamas.[^1]

[4] We decline to lift the stay. To the extent that the appellant has complied with any aspect of the conditions imposed, his compliance has been piecemeal, vague, selective, and incomplete. Moreover, much of what he asserts lacks any credibility. His compliance is more a matter of form rather than of substance.

[5] As but one example, the husband has persistently resisted providing useful information about his living arrangements. In an initial response to the Request, he claimed to have no permanent residence, stating that he house sits or lives with friends. However, after being confronted with information in the wife’s affidavit, he conceded that he stays at a particular address in the Bahamas “much of the time” and “is permitted to use the address for limited purposes such as the registration of intellectual property rights.” The husband has yet to provide any information about who permits him to spend “much of the time” at this home or the basis for that indulgence. Nor has he explained why it is that the single document relating to his status in the Bahamas (a photocopy of a tourist card completed by him), which he belatedly produced, asserts that he lives at a specified address in Florida and that his country of residence is the U.S.

[6] As another example, many of the husband’s responses in the Request are characterized by a lack of particulars.

[7] As a final example, the husband delivered a purported financial statement in which he states that he lives in Nassau, Bahamas; that he has been unemployed since 2007; that he has no assets other than a laptop computer; and that he subsists based on expenses of $11,940 per year, which are paid for by his parents.

[8] In that and other documents, the husband also claims that, in addition to paying his living expenses, his parents honour his child support obligations, including paying university expenses for one of his three children.

[9] Without particulars, of where, when, and under what arrangements with whom the husband lives, his assertion that he has no home and no housing expenses lacks credence. Absent evidence of his parents’ means and an explanation and evidence of his arrangements with them, the same applies to his claims that his parents pay the expenses he has enumerated.

[10] We conclude that the husband has not complied with the conditions in the stay order.

[11] The motion is therefore dismissed with costs to the responding party fixed in the agreed upon amount of $7,500 inclusive of disbursements and applicable taxes.

“Janet Simmons J.A.”

“H.S. LaForme J.A.”

“G. Pardu J.A.”

[^1]: The parties agree that while the stay order refers to items 2, 3 and 4 of a June 29, 2009 order, what was intended was compliance with items 2, 3 and 4 of a March 18, 2010 order. We accept that interpretation.