Mariani v. Mariani, 2015 ONSC 3307

NEWMARKET COURT FILE NO.: FC-06-25495

DATE: 20150529

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Family Responsibility Office, for the benefit of Debra Mariani, Applicant (not a party to this motion)

and

Fabrizio Mariani, Respondent/Payor

BEFORE: The Honourable Madam Justice H. McGee

COUNSEL: Kristen Kizoff, Counsel from Family Responsibility Office

Ian McCuaig, for the Respondent/Payor

HEARD: May 14, 2015

endorsement

Order Sought

[1] Ian McGuaig, the respondent/payor asks the court to set aside the warrant of committal, issued January 15, 2015, pursuant to rule 19.08 of the Rules of Civil Procedure[^1].

[2] A warrant of committal is an order requiring a party who has refused or neglected to comply with a known court order within a fixed period of time, to be committed to prison for a specified period of time.

[3] The January 15, 2015 warrant requires Fabrizio Mariani, who has refused or neglected to comply with the default order of March 28, 2013, to be committed to prison for a period of one-hundred and eighty (180) days.

[4] The warrant was executed February 17, 2015. The respondent is presently detained at the Central North Correctional Centre in Penetanguishene, Ontario.

[5] As of May 1, 2015, the respondent’s arrears inclusive of administrative fees and costs total $280,603.

Summary of Relevant Events from Separation to Warrant of Committal

[6] Debra Mariani and Fabrizio Mariani were married on September 2, 1989. They separated in late September 2006. At the time, their two children were 14 and 12 years of age.

[7] An application was issued almost immediately. Despite active case management, the negotiations did not progress. The application was amended to add the paternal grandfather and the family company, AllCrete Property and Road Services, as respondents. Both parents, the paternal grandfather and the company, had experienced senior counsel.

[8] On April 13, 2007, the applicant was successful in obtaining an ex parte mareva injunction against the three respondents. In making the order sought, Justice Wood was satisfied that the applicant was at risk of suffering irreparable harm absent a significant preservation order.

[9] The respondents moved swiftly to set aside the ex parte order. Extensive materials were placed before Justice MacKinnon. In a lengthy endorsement, he confirmed the earlier judicial view that the applicant mother had a prima facie case for an equalization which would require a payment in excess of the respondent’s one-half share of equity in the jointly owned home and that she was at risk of being unable to realize on her claim for equalization.

[10] At issue was the ownership of the respondent’s company and some recent manoeuvering of its shares between him and his father. Justice MacKinnon found that absent an ongoing order for the preservation of those shares, there was a real risk that the respondent would dispose of or dissipate his assets. Justice MacKinnon continued the prior order and compelled the respondent to provide the listed disclosure that he had consented to provide on February 16 and 20, 2007. Costs were later ordered against the respondents in the amount of $16,500.

[11] On July 11, 2007, Justice Rogers made a temporary, without prejudice order for table child support of $733 based on the respondent’s acknowledged annual income of $48,672.

[12] Extensive litigation continued. The respondent’s failure to provide disclosure remained a significant issue that prevented resolution of both support and property claims.

[13] One of many motions for a finding of contempt against the respondent came before Justice Maddalena on May 15, 2008. On consent, any claims against the co-defendants had been previously released following the death of the paternal grandfather earlier that year. Justice Maddalena noted that:

(a) The respondent stated that he was still in the process of obtaining a valuation of his income for support purposes;

(b) The respondent had still not obtained a valuation of his interest in the cottage, despite being under a clear legal obligation to do so;

(c) There was no evidence that the respondent had accounted for discrepancies in personal and business banking accounts, which he had consented to do and was under a legal obligation to complete;

(d) The costs order of $16,500 was outstanding,;

(e) The respondent was in arrears of the temporary child support[^2]; and,

(f) Although it did not rise to a finding of contempt, there was outstanding compliance with multiple court orders, and where there had been some compliance, it had come very late in the day.

[14] The respondent was granted ninety days to comply with the outstanding court orders, failing which the mother could move on five days’ notice to strike pleadings.

[15] On June 2, 2008, an order on consent was made for the payment of child support in the amount of $733 per month for two children based on the respondent’s income of $48,672. On July 7, 2008, an order for divorce was issued.

[16] The respondent continued in breach of the prior orders, including the order for child support. The mother renewed the motion to strike pleadings over the summer of 2008. On September 17, 2008, the motion was adjourned to March 12, 2009. On that day the motion was fully argued and Justice Tranmer endorsed:

The items in my reasons are still in default, to be completed within 45 days with sworn proof thereof to be served and filed with court, failing which Mr. Mariani’s pleadings shall be struck out without need for further notice of Motion.

[17] On May 4, 2009, the applicant moved by way of Form 14B motion and 23C affidavit for final relief on an undefended basis. Justice Nelson heard the motion and on May 8, 2009, granted the relief sought, which included, inter alia, the transfer of the matrimonial home to the mother, payment of child support of $2,310 and spousal support of $2,500, based on imputed income of $150,000. The terms were a final order.

[18] Meanwhile, the Family Responsibility Office (“FRO”) was proceeding with a default hearing. By order dated April 1, 2009, the respondent was to pay $800 per month, which was comprised of $733 in table support and $67 a month in arrears. The latter was a nominal amount given that arrears then stood at $13,976.34. No payments for child support had been made since March 25, 2008. The default order provided that the respondent was to be imprisoned for two days should he fail to make the monthly payment. The balance of the hearing was adjourned to June 10, 2009.

[19] The default hearing of June 10, 2009 was adjourned to August 26, 2009, then to October 21, 2009, and then to January 14, 2010. On each occasion, the prior order for payment and term of incarceration in default of payment, continued. The payor continued to ignore the amounts to be paid and the amount of support arrears increased.

[20] At the January 14, 2010 attendance, the respondent’s lawyer indicated for the first time that a motion to change was being contemplated. A further adjournment was granted to March 25, 2010 and then adjourned to April 22, 2010.

[21] On April 7, 2010, the respondent did bring a motion before Justice Nelson, but not to vary the final order within a motion to change; rather, he sought to set it aside.

[22] In his ruling, Justice Nelson provided a lengthy history of the proceeding to date, which he described as “lengthy, somewhat convoluted and very expensive.” He reviewed the terms of his final order and the subsequent refusal by the Court of Appeal to extend the respondent’s time for leave to appeal in the face of ongoing failures to disclose.

[23] The reader is referred to Justice Nelson’s ruling of April 7, 2010. Ultimately, Justice Nelson granted the relief sought and set aside the final order on certain terms. One of the terms was that child support was to continue to be paid pursuant to the June 2, 2008 consent order for support.

[24] The default hearings continued to be adjourned: August 5, 2010 to October 7, 2010 to January 13, 2011 to April 14, 2011. This latter endorsement confirms the ongoing amount of $733 to be paid; being table support and no arrears, failing which incarceration for two days. The respondent continued to be in default of the consent order for $733 per month.

[25] The family law proceeding proceeded to a trial management conference before Justice Rogers on August 27, 2010, and continued on December 10, 2010. Trial was set for five days with counsel confirmed as retained for both parties.

[26] The trial was reached during the May 2011 sittings and occupied a full nine days of hearing. The respondent was represented by counsel until just prior to trial. Lengthy reasons for decision were released by Justice Kaufman on August 17, 2012. All issues were addressed.

[27] In his reasons, Justice Kaufman observed significant difficulties with, and omissions within, the respondent’s evidence. Ultimately, he found the respondent’s income for support purposes to be $94,309. Child Support was set at $943 until December 31, 2009 (found to be a shared custody period), and then at $1,346 thereafter. Spousal Support was set at $1,253. By separate endorsement, the respondent was ordered to pay costs in the amount of $46,046.

[28] The April 14, 2011 default hearing had been continued to July 14, 2011. On that day, the respondent did not attend court. By July 2011, the FRO statement of arrears had been corrected from a high of $218,678, to $27,025 and fully reflected the setting aside of the May 9, 2008 order. The respondent continued to be in arrears.

[29] After the May 2011 trial, the respondent more or less ceased attending court. He paid no support, other than amounts that were diverted from his tax returns or credits. He did not appear December 8, 2011, but did appear April 19, 2012 to ask for an adjournment, which was granted, and then did not appear on the new date of November 1, 2012, or its adjournment date of January 17, 2013. FRO moved to suspend his driver’s license.

[30] On March 4, 2013, the respondent brought a motion without notice to FRO for a refraining order to prevent the suspension of his licence. It was adjourned to March 6, 2013 for service. After lengthy discussions with FRO counsel, the respondent left the building, effectively abandoning his motion.

[31] The default proceeding was due back to court on March 28, 2013. The respondent had been personally served with notice of the date, and the event had been discussed with FRO counsel on March 6, 2013. The respondent was not present, nor did he communicate with the FRO Director, any explanation for his absence or request for an adjournment.

[32] It was the seventeenth attendance to date. On each of the sixteen attendances preceding March 28, 2013, a temporary order had been made or continued per section 41(14) of the Family Responsibility and Support Arrears Enforcement Act[^3], (“FRSAE Act”) for the payment of support, in default of which a term of incarceration was provided.

[33] At no time had the respondent filed a dispute or any financial disclosure. The appeal period following the delivery of Justice Kaufman’s reasons for trial had passed, and no motion to change had been issued.

[34] The statement of arrears was filed. It demonstrated that no support payments had been received since April 2011, but for minor amounts through diversion. After adjustments for the terms of the final order of August 17, 2012, arrears stood at $176,366.

[35] A final order on default was made in this amount, payable $2,715 per month, with a lump sum of $177,166 to be paid by May 31, 2013. If in default, the respondent was to be incarcerated for one-hundred and eighty (180) days.

[36] The respondent was served with the order of March 28, 2013. He did not appeal the order, take any steps to set it aside, or attempt to vary it. No payments were made to the credit of the order. No explanation was ever given for his failure to appear on March 28, 2013 or to inquire into the course of the proceedings.

[37] It was not until September 2014 that FRO served the respondent with a motion for a warrant of committal to be heard on November 13, 2014. It is not disputed that:

(a) Mr. Mariani was personally served with the motion for warrant of committal; and,

(b) Service included a copy of the March 28, 2013 final default order which set out the terms of the default, including the amount under enforcement, how it was calculated and the term of imprisonment that would flow from the default.

[38] The respondent attended court on November 13, 2014. He filed no materials. He spoke to duty counsel. He asked for an adjournment to obtain counsel and follow up with an application for Ontario Works. An adjournment to January 15, 2015 was granted on two terms, each on consent, as follows:

(a) that he would pay $2,725.95 by January 1, 2015; and,

(b) that he would provide a current financial statement no later than January 15, 2015.

[39] The respondent did not pay the amount of $2,725.95 or any other amount in support. His affidavit of May 8, 2015, deposes that he did agree to make the payment and thought he could earn it if he had his licence, but was surprised to learn that he could not get it back yet. He also deposed that his brother had agreed to pay $2,725.95 on his behalf, but he decided that he did not want to accept his brother’s money.

[40] The respondent did not file a financial statement or any other materials disputing the enforcement. To this day, he has not filed, in this proceeding, a current financial statement (but for that of March 6, 2014, see below), personal or corporate income tax returns, or notices of assessment for the period of 2008 to 2014, or proof of current income or benefits.

[41] The respondent did not appear on January 15, 2015. The warrant issued. He was arrested on February 17, 2015. For reasons that are accepted by the court as demonstrating no intentional delay, this urgent motion was not completed by counsel until May 2015. The trial coordinator provided counsel an urgent motion date of May 14, 2015.

[42] The respondent filed an affidavit, deposed May 8, 2015, in support of his motion to set aside the warrant of committal. In that affidavit, he states that he intended to appear on January 15, 2015, but was unwell. No further information as to his non-attendance was attached.

[43] The May 8, 2015 affidavit is the only document filed in this enforcement proceeding but for the March 4, 2013 handwritten Form 4 notice of motion and financial statement, which were prepared by the respondent in support of his motion for a refraining order.

[44] The respondent agrees in his affidavit that he consented to provide a current financial statement on November 13, 2014, but that he was unable to access his records. He now attaches to his May 8, 2015 affidavit:

(a) A letter setting out a $36,500 (net $25,550) withdrawal of locked in RRSPs in March, 2013 (no payments were made against arrears at that time);

(b) Withdrawal of $4,186 in RRSPs for 2012 (again, no payment made); and,

(c) The Form 4 Financial Statement, sworn March 6, 2014, showing no income, but showing monthly car payments of $300 and other monthly expenses of $930, that he is the co-owner of an unencumbered matrimonial home (address not given) worth $600,000 and that he is a co-owner of a cottage worth $30,000.

[45] Counsel for the respondent proffers the affidavit as evidence that his client is unable to pay the support arrears.

[46] Justice Kaufman’s trial findings assist me in assessing the reliability of the March 6, 2014 financial statement, prepared in support of the respondent’s motion for a refraining order. Justice Kaufman found that, as of the date of separation on September 26, 2006, Mr. Mariani held:

(a) A $40,000 interest in a cottage;

(b) Vehicle and recreational vehicles totalling $53,500;

(c) RRSPs of $51,455 (which appear to have been since withdrawn);

(d) AllCrete business, share value of $200,000, which continues to be operated by the respondent;

(e) Credit card debt of (rounded) $50,000 in September 2006; and,

(f) Mortgage debt subsequently assumed by the mother.

[47] In his May 8, 2015 affidavit, the respondent states that he is still attempting to qualify for Ontario Works, but he has not yet been able to complete his application. He gives no current income information that would support eligibility.

[48] In his Form 4 financial statement, the respondent does not state the address of the $600,000 home which he jointly owns. He does not state his ownership interest in either the house or the cottage. His address is left blank on his materials. He states that he lives at the cottage with his elderly mother. The cottage is not valued.

[49] The respondent states in his May 8, 2015 affidavit that upon his release and the return of his licence, he will be able to work and to make payments of support.

[50] He does not address why he has failed to make child support payments during prior periods when he did hold a license and was working fulltime.

[51] There is no doubt as to the validity of the final order under enforcement. It was the result of a fulsome trial of the issues heard in May of 2011. The respondent had senior, experienced counsel until just prior to the commencement of trial. He participated fully in the proceeding. The final order, issued on August 17, 2012, has not been appealed, set aside or varied. It remains in full force and effect.

Law and Analysis

Default Order

[52] This is not a motion to set aside the March 28, 2013 default order. Nonetheless, a brief review of the law governing default orders assists in understanding the limited scope of a motion to set aside a warrant.

[53] Default hearings are governed by Section 41 of the FRSAE Act. Specifically, section 41(9) provides that a payor is presumed to have the ability to pay the arrears and to make subsequent payments unless the contrary is shown. The burden of proof lies on the payor.

[54] The powers of the court are set out in section 41(10):

Powers of court

(10) The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor,

(a) pay all or part of the arrears by such periodic or lump sum payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears;

(b) discharge the arrears in full by a specified date;

(c) comply with the order to the extent of the payor’s ability to pay;

(d) make a motion to change the support order;

(e) provide security in such form as the court directs for the arrears and subsequent payment;

(f) report periodically to the court, the Director or a person specified in the order;

(g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur;

(h) be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the arrears are paid, whichever is sooner; and

(i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner[^4].

[55] Imprisonment has always been an enforcement mechanism of last resort. Something more than non-payment is required. The payor’s conduct must demonstrate a wilful and deliberate disregard for the obligation to comply with court orders (see most recently: Ontario Director of Family Responsibility Office v. Belic[^5]).

[56] Imprisonment is meant as a means of enforcing the support order and not as a means of punishing the payor. The enforcement rationale for imprisonment upon non-payment makes sense only if the payor has the ability to make the payments required by the order (see Saunders[^6]). Imprisonment of a payor under clause 41(11) of the FRSAE Act[^7] does not discharge arrears under an order.

[57] Caution and fairness are the touchstones of an order for incarceration. In Fischer v. Ontario (Director, Family Responsibility Office)[^8] the Court of Appeal set out a minimum standard for fairness:

• that the court explain to the payor the nature of the proposed committal order and the effect it could have on the payor’s liberty;

• that the court explain to the payor why it is considering making the committal order; and

• that the payor be given an opportunity to respond to the reasons offered by the court and to advise the court of any additional facts that may be relevant to the court’s decision to make the order.

[58] Once a default order under section 41(10) has been granted, there is a limited scope of review.

Power to change order

41(15) The court that made an order under subsection (10) or (12) may change the order on motion if there is a material change in the payor’s or other person’s circumstances, as the case may be. 2005, c. 16, s. 24.

Tests to Set Aside a Warrant of Committal

[59] A warrant of committal is an order requiring a debtor to be committed to prison as a consequence of breaching a default order. It is not a de nova order. Warrants do not set the quantum of arrears or the terms of payment. The setting aside of a warrant does not change the amount of outstanding arrears. Neither does it limit the obligation of the payor.

[60] A payor who wishes to set aside a warrant of committal must provide evidence of a material change in circumstances going to the debtor’s ability to pay that has arisen since the making of the default order.

[61] The respondent’s counsel acknowledges that there has been no material change in circumstances since January 15, 2015. He does not assert that there has been any material change in circumstances since the March 28, 2013 default order. Neither does he seek a change in the default order per rule 25(19) of the Family Law Rules[^9]. He argues that the warrant ought to be set aside on terms that are just, per rule 19.08 of the Rules of Civil Procedure.

[62] There are conflicting authorities on the applicability of rule 19.08 of the Rules of Civil Procedure to a motion to set aside a warrant of committal. From my review of the case law, the question is not whether rule 19.08 is available through the operation of rule 1(7)[^10] of the Family Law Rules, but rather, the applicability of rule 19.08 to the setting aside of an order that serves only to give effect to a term within an order that is not in dispute.

[63] It is my view that rule 19.08 is applicable to the setting aside of a warrant, but only within the limited scope contemplated by section 41(15) of the FRSAE Act.

[64] Rule 19.08 provides as follows:

SETTING ASIDE DEFAULT JUDGMENT

19.08 (1) A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just. R.R.O. 1990, Reg. 194, r. 19.08 (1).

(2) A judgment against a defendant who has been noted in default that is obtained on a motion for judgment on the statement of claim under rule 19.05 or that is obtained after trial may be set aside or varied by a judge on such terms as are just. R.R.O. 1990, Reg. 194, r. 19.08 (2).

(3) On setting aside a judgment under subrule (1) or (2) the court or judge may also set aside the noting of default under Rule 19.03. R.R.O. 1990, Reg. 194, r. 19.08 (3).

[65] Case law under rule 19.08 has evolved to generally provide for a three-pronged, conjunctive test to set aside a default order or judgment:

(a) The moving party must move promptly after learning of the order to have it set aside.

(b) The moving party must provide an adequate explanation for the default.

(c) The moving party must establish that he has an arguable case on the merits.

[66] The court is to assess all three tests and then weigh the potential prejudice to the moving party should the motion be dismissed, the potential prejudice to the respondent should the motion be allowed and the effect of any order the judge may make on the overall integrity of the administration of justice. Provided that at least one of the tests puts the question of prejudice into play, the discretion to set aside can be exercised[^11].

[67] The consideration of prejudice within an enforcement proceeding cannot be limited to a view of the payor’s circumstances. Prejudice must also be measured by the effect on the recipient and the administration of justice. The setting aside of a warrant might mean that child and spousal support funds will remain unpaid.

[68] In my view, to put one of the tests into play within a motion to set aside a warrant as contemplated in Peterbuilt^12, the evidence supporting one or more of the three tests must create a prejudice to the payor that takes him or her outside the intended scope of an enforcement proceeding; that is, there is no longer any realistic prospect of compelling payment. Absent that prospect, the process becomes punitive and moves the term of incarceration outside the intended scope of the legislation.

Does the Respondent Meet the Tests?

[69] On the first test, it is not contested that the respondent moved as quickly as he could to bring this motion to set aside the warrant.

[70] On the second test, I find that there is no reasonable explanation for the respondent’s failure to attend or inquire into the result of the January 15, 2015 motion. No evidence has been tendered, but for the respondent’s assertion that he was unwell.

[71] On the third test, I cannot find that the respondent has established an arguable case on the merits. He has presented no evidence that would support a different order than that made on January 15, 2015. Even to the date of this motion, the respondent has failed to file a financial statement or rebut the presumption that he is able to pay the amounts under enforcement.

[72] On January 15, 2015, the respondent was in breach of each of the only two terms of the November 13, 2014 adjournment, those being a payment term and a requirement to file a financial statement. The failure to make the payment of support was deliberate[^13]. The failure to provide a financial statement - a term that was for his benefit in the proceeding - is fatal to his ability to demonstrate a material change in circumstances since March 28, 2013.

[73] His failure to provide a current financial statement on this motion to set aside the warrant is equally fatal. Even were his counsel to assert a material change in circumstances, and he does not, the court has no basis upon which to make such a finding or contemplate the potential for such a finding.

[74] I will observe that there might have been other reasons on January 15, 2015 to not issue the warrant. For example, the respondent might have reported that a sale or refinancing of his home or his cottage was imminent, making funds available from which to discharge the arrears or a portion of the arrears. The respondent might have provided documentation showing that he was in the process of securing funds through his business or completing a contract that would result in a payment of support. He might have provided the court with minutes of settlement executed by his former spouse showing an agreement to a lesser amount in arrears in exchange for an immediate lump sum payment.

[75] Counsel for the respondent is correct in his submissions that there cannot be any order more prejudicial to a payor in default than an order for incarceration and that incarceration must be a remedy of last resort. Has the respondent lead evidence on any one of the three tests that demonstrates sufficient prejudice to place an issue “into play”?

[76] It is important to observe that the setting aside of this warrant will not remove the prejudice to Mr. Mariani. It will only defer it. Hence the limited scope of the applicability of rule 19.08. Imprisonment of a payor has no effect on the accruing of arrears or other means of enforcement per clause 41(11) of the FRSAE Act. Until the arrears are discharged, further warrants can issue.

[77] In the absence of any plan for payment or evidence of a material change in circumstances, it was highly likely that the warrant would have issued on January 15, 2015, irrespective of whether the respondent chose to attend. By not appearing, the respondent simply avoided its execution for a few more weeks.

Decision

[78] I can discern no basis upon which it would be just to set aside the warrant of committal in accordance with rule 19.08 of the Rules of Civil Procedure.

[79] The respondent has demonstrated a longstanding disregard of court orders. Since 2007, he has made only fleeting efforts to provide financial support for his two children and their mother, while having the means to do so. From as early as April 1, 2009, he has been at risk of incarceration. That risk escalated sharply on March 28, 2013 after he ceased participating in the enforcement proceeding and the final default order was issued.

[80] The respondent has demonstrated no arguable case on the merits, there being no evidence to support a material change in circumstances from March 28, 2013 to January 15, 2015. He has proposed no plan for payment.

[81] I do not find that incarceration creates prejudice to the respondent that takes him outside the intended scope of this enforcement proceeding. The trial findings of May 2011 and the property listed on the respondent’s March 6, 2014 financial statement, create a realistic prospect of payment to the recipient.

[82] The respondent’s motion to set aside the warrant of committal issued January 15, 2015, pursuant to rule 19.08 of the Rules of Civil Procedure is dismissed.

Madam Justice H.A. McGee

Date Released: May 29, 2015

[^1]: RRO 1990, Reg. 194.

[^2]: A current review of the statement of arrears shows that as of May 15, 2008 the respondent had only paid $2,565.50 on support accrued of $8,078.84.

[^3]: 1996, SO 1996, c 31.

[^4]: 2005, c. 16, s. 24; 2014, c. 7, Sched. 10, s. 11 (1).

[^5]: (2006), 2006 22811 (ON SC), 30 R.F.L. (6th) 127(S.C.J.) at para 29.

[^6]: Supra, para 11-13.

[^7]: 2005, c. 16, s. 24.

[^8]: [2008] ONCA 825.

[^9]: O. Reg. 114/99.

[^10]: The section reads: 1 (7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

[^11]: Peterbuilt of Ontario Inc. v. 1565627 Ontario Ltd., [2007] ONCA 333.

[^13]: His May 8, 2015 affidavit states that his brother was prepared to pay the money for him, and that he refused to take the monies.