Court of Appeal for Ontario

Citation: Fatahi-Ghandehari v. Wilson, 2016 ONCA 921 Date: 2016-12-06 Docket: M47221 (C62980)

Before: Brown J.A. (In Chambers)

Between: Sara Fatahi-Ghandehari Respondent (Responding Party)

and

Stewart Wilson Appellant (Moving Party)

Counsel: Paul Robson, for the moving party No one appearing for the responding party

Heard: December 5, 2016

Endorsement

[1] The main issue in this high-conflict matrimonial litigation is money – specifically, whether the appellant husband, Stewart Wilson, is required to pay his wife, the respondent Sara Fatahi-Ghandehari, spousal support and an equalization payment. The dispute between the parties has spawned both civil and matrimonial proceedings, as well as bankruptcy proceedings involving the husband. The husband’s pending appeal before this court will be the third appeal to the Court of Appeal in their dispute within the last two years.

[2] The husband moves to stay pending appeal the order of Price J. made November 3, 2016 (the “Order”). Although the motion materials do not contain a formal order, the motion judge described the relief granted at para. 92 of his reasons: 2016 ONSC 6863. His Order contains three basic components: (i) relief requiring the identification and preservation of assets pending further order of the court; (ii) the scheduling of the wife’s contempt motion against the husband for his alleged breach of several financial information disclosure orders; and (iii) an order concerning the wife’s examination of two non-parties in aid of her contempt motion.

[3] The wife did not appear at the hearing of the motion to stay. She is self-represented, but appears to draw frequently upon a particular law firm for assistance on motions and examinations. In correspondence with the court office, she communicated a request to adjourn the motion and stated she could not attend because she would lose her job if she did.

[4] I considered the wife’s written request for an adjournment, but proceeded to hear the husband’s motion on the merits in her absence because her emails to the court office contained a focused, and sophisticated, legal position concerning her husband’s appeal and motion. She submits her husband has appealed to the wrong court and his appeal is out of time. In her view, the Order is interlocutory in nature, with the result that an appeal lies with leave to the Divisional Court.

Analysis

Serious issue for appeal

[5] Dealing first with whether the appeal raises serious questions for consideration, the husband submits that at its heart the Order is final in nature because the motion judge made two “final” decisions during the course of his reasoning. First, the motion judge ignored the terms of the marriage contract between the parties. Second, he ignored the effect of the earlier order of Grey J., affirmed on appeal, that the husband was the owner of a number of exotic cars that he either conveyed or made available for use in some fashion to a non-party, Straight Forward Auto Service Inc. (“Straight Forward”).

[6] I do not accept these submissions. They ignore the litigation history leading up to the making of the Order and the effect of the Order.

[7] Back in July, 2015 the husband was ordered to deliver his Answer and sworn Financial Statement. He failed to do so. Starting in early July, 2016, the motion judge heard a series of motions to require proper financial disclosure from the husband.

[8] On July 7, 2016 the motion judge ordered the husband to retain, by August 7, a valuator to value his exotic car business. The motion judge also ordered the husband to deliver his Answer and Financial Statement, together with additional financial documents, by specified dates. No appeal was taken from that order.

[9] On August 17, the parties were back before the motion judge. The wife moved to find the husband in contempt for failing to comply with parts of the July 7 order. Specifically, he had not retained a business valuator for his exotic car business, nor had he produced his income tax returns and assessments. The husband took the position that the exotic cars were now owned by someone else – Straight Forward – so he need not commission a valuation.

[10] The motion judge adjourned the contempt motion to October 26. He granted the wife leave to bring a motion to examine non-parties, including her husband’s mother, Ms. Elizabeth Wilson, and Mr. Jason Bradimore, who is involved with Straight Forward. Both parties were granted leave to file further evidence about the ownership of the exotic cars. No appeal was taken from that order.

[11] On October 18, the motion judge granted the wife leave to examine Ms. Wilson and Mr. Bradimore. The order was unopposed. The order required the wife to serve notices of examination by October 25, with the examinations scheduled for October 31. No appeal was taken from that order.

[12] Which brings us to the hearing on October 26 that resulted in the Order. At that time, the motion judge further adjourned the hearing of the wife’s contempt motion to November 23, 2016. (That return date has since been moved to January 17, 2017 because the husband’s counsel, Mr. Robson, had a conflict of interest, necessitating the retainer of new counsel for the husband on the contempt motion.)

[13] The husband appeals that part of the Order adjourning the contempt hearing to a new date and he seeks to stay the hearing of his wife’s contempt motion. I see no serious issue for appeal to this court. That part of the Order clearly is interlocutory, involving no more than an adjournment of a scheduled hearing date.

[14] The husband also appeals the part of the Order requiring the non-parties, Ms. Wilson and Mr. Bradimore, to attend for examination on October 31. Again, I see no serious issue for appeal. That part of the Order simply re-affirmed the earlier October 18 order granting the wife leave to conduct the examinations; no appeal was taken from the October 18 order. The re-affirmation of the examination date resulted from the position taken by the non-parties that the wife’s notice of examination was defective, as a result of which they did not plan to attend the scheduled October 31 examination.

[15] Finally, I see no serious issue for appeal to this court in respect of the identification and preservation of property provisions of the Order. An order for the preservation of an asset is interlocutory in nature: Robinson v. Thornlea Farms Ltd., [1991] O.J. No. 2219 (C.A.). An appeal does not lie to this court.

[16] The husband seeks to characterize the preservation part of the Order as final in nature. He submits the motion judge employed erroneous reasoning in making the preservation order by ignoring the parties’ marriage contract and misapprehending the effect of the earlier order of Grey J. about the husband’s ownership interest in the exotic cars. However, the classification of an order as final or interlocutory does not turn on the nature of the reasons given for it: R.S. v. R.H. (2000), 2000 CanLII 17038 (ON CA), 52 O.R. (3d) 152 (C.A.), at para. 16. The character of an order is determined by its legal effect: Chirico v. Szalas, 2016 ONCA 586, at para. 34.

[17] Consequently, I need not comment on the motion judge’s reasoning because his findings of fact and application of the law, whether right or wrong, resulted in a preservation order that did not purport to finally determine the legal rights of any party to the assets in question. The effect of that part of the order merely is to preserve specific assets pending the final determination of an issue.

Irreparable harm and balance of convenience

[18] As to the issues of irreparable harm and the balance of convenience, the husband submits the preservation provisions of the Order will interfere with Straight Forward’s ability to carry on business and, consequently, his ability to earn a livelihood because his income is based on his earnings as manager of Straight Forward. The difficulty with the husband’s submission is that he has not filed evidence to support his submission. Although his affidavit objects to the Order, it does not describe what effect the preservation provisions of the Order are having on Straight Forward’s business. Nor did Mr. Bradimore file an affidavit in support of the motion to stay.

[19] Taking all the factors in consideration, I conclude the appellant has not demonstrated the interests of justice call for a stay of the Order pending the hearing of the appeal.

Disposition

[20] For the reasons set out above, I dismiss the motion. The wife did not file any responding materials or appear at the hearing of the motion. Accordingly, there will be no order as to costs.

“David Brown J.A.”