Court of Appeal for Ontario

Date: 2018-03-01 Docket: M48651 (C64319)

Judges: Doherty, MacFarland and Paciocco JJ.A.

Between

Alberto Benarroch Applicant (Appellant)

and

Monique Abitbol, Carlos and Sara Abitbol, Jacob Benarroch, Louis R. Montello, HPI Administrative Services LLC, Hercules Products Inc., Turnberry Ts2 Corp., Miami Alone Products Corp., Plasticos Hercules CA, Productos Hercules CA, Las Princesas Corp., and Rafael Benarroch Respondent (Respondent)

Counsel

Jaret Moldaver and Lindsay Konkol, for the moving party, Monique Abitbol

Daryl Gelgoot, for the responding party, Alberto Benarroch

Heard and released orally: February 22, 2018

Reasons for Decision

[1] This is a motion brought by the respondent to quash the appeal on the ground that the order under appeal is interlocutory and not final, meaning that this court has no jurisdiction to hear the appeal.

[2] The order under appeal was made in the course of ongoing family law proceedings. The order requires that the appellant make certain payments, including monthly spousal and child support payments to the respondent.

[3] Paragraph 7 of the order reads:

In the event that the Husband fails to comply with paragraph 5 above, the Wife may move without further notice to the Husband to strike his pleadings involving all financial issues between the parties.

[4] The appellant appeals essentially on the ground that he genuinely cannot pay the amounts ordered and that the effect of para. 7 is to deny him any opportunity to participate any further in the ongoing proceedings. Counsel for the appellant refers to this as a "catch 22".

[5] The appellant's credibility in this litigation has been the subject of adverse comment. His asserted impecuniosity is strongly challenged by the respondent. In any event, even if the appellant is impecunious, that fact does not assist in determining the appropriate appellate forum. We agree with counsel for the moving party that the terms of the order requiring payments towards spousal and child support are interlocutory. A term like para. 7, directed at the consequence of non-compliance with the order, cannot alter the nature of the order: see J.K. v. Ontario, 2017 ONCA 332, at para. 18.

[6] The order is interlocutory. The appeal is quashed. We do not reach the motion for security for costs.

[7] In our view, it was plain and obvious on the authorities that this order was interlocutory and not appealable to this court. Counsel for the respondent put counsel for the appellant on notice of its position that this court had no jurisdiction shortly after the appeal was launched. This motion should not have been necessary. In our view, this is an appropriate case for costs on a substantial indemnity basis, both in respect of the motion and the appeal itself. We fix those costs at $22,000, inclusive of disbursements and relevant taxes.

"Doherty J.A."

"J. MacFarland J.A."

"D.M. Paciocco J.A."