Fias v Souto, 2015 ONSC 4140

COURT FILE NO.: FS-13-18943

DATE: 20150625

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Aretusa Fias, Applicant

AND:

Nuno Pereira Souto, Respondent

BEFORE: Kiteley J.

COUNSEL: Elliot Birnboim for the Applicant

Theodore Nemetz, for the Respondent

HEARD: June 25, 2015

ENDORSEMENT

[1] In reasons for decision released Feb. 6, 2015, 2015 ONSC 880 Stevenson J. made findings at paragraph 170 to 183 with respect to the jointly owned property on Leopold. She held that the circumstances gave rise to the presumption of resulting trust and that the Applicant had rebutted the presumption. In other words, she sustained the title to the property as joint tenants.

[2] At the time of the trial, Leopold had been sold and approximately $400,000 was held in trust. At paragraph 183 and 203 of the reasons, she ordered that both parties would share equally in the proceeds that were being held in trust, subject to certain deductions. Paragraphs 203 (xxii) and (xxiii) reflected her order and the adjustments.

[3] Those findings are reflected in paragraphs 23 and 24 of the signed and entered order.

[4] Subsequently, Stevenson J. gave written reasons in which she ordered the Respondent to pay costs in the amount of $45,000. The order dated April 7, 2015 was signed and entered and provided in paragraph 1 that the Respondent pay those costs from his share of the proceeds of sale of the Leopold Property that were held in trust.

[5] The Respondent has filed a notice of appeal in which he has asked that the judgment be set aside and a judgment be granted that “the applicant hold the subject properties in trust for the respondent”. The grounds are that “the learned trial judge erred in not finding that the applicant did not hold the properties, the subject of the actions, in trust for the respondent”.

[6] Counsel for the Applicant wrote to the lawyer who was holding the funds in trust and asked for distribution in accordance with paragraphs 23 and 24 and the costs order. Mr. Nemetz took the position that the order was stayed as a result of the appeal. The lawyer refused to disburse the funds.

[7] Counsel for the Applicant brought this motion for a declaration that paragraphs 23 and 24 are not stayed pending the appeal as well as a declaration that paragraph 2 of the final order of Stevenson J. dated April 7, 2015 is not stayed pending appeal. In addition, the Applicant asks for an order directing the lawyer to release the monies held in his trust account in accordance with the final orders of Justice Stevenson dated February 6 and April 7.

[8] This motion is brought pursuant to rule 63.01 which provides that the delivery of a notice of appeal stays any provision of the order for payment of money. Mr. Nemetz was unable to distinguish the decision in Picavet v Clute [2012] O.J. No. 2882, 2012 ONCA 441 from the circumstances before me. The proceeds of sale referred to in paragraph 23 of the order do not constitute a provision for payment of money. Rather, as the reasons for judgment make clear, the proceeds represent her half interest in the property which was sold during the case. It just happens that her interest is now represented in cash, not real property. The fact that the real estate lawyer is required to write a cheque to pay her and to pay the Respondent does not mean that it is a provision for payment of money.

[9] On the other hand, the terms of paragraph 24 of the February 6 order and paragraph 1 of the April 7 order do constitute a provision for payment of money. Mr. Birnboim points out that the Respondent has not appealed the terms of paragraph 24 or of paragraph 1 and that therefore they ought not to be stayed. For purposes of this motion only, I am prepared to conclude that an appeal from the specific paragraphs 24 and paragraphs 1 is not needed in order to create a stay.

ORDER TO GO AS FOLLOWS:

[10] Paragraph 23 of the final order of Stevenson J. dated February 6, 2015 is not stayed pending the appeal.

[11] Paragraph 24 of the final order of Stevenson J. dated February 6, 2015 is stayed pending the appeal.

[12] Paragraph 1 of the final order of Stevenson J. dated April 7, 2015 is stayed pending the appeal.

[13] Geary B. Shorser shall release from the monies held in his trust account 50% of the funds held to each of the Applicant and to the Respondent provided that he hold back from the funds payable to the Applicant the amounts listed in paragraphs 24(a), (b) and (c) of the final order dated February 6, 2015 and from the funds payable to the Respondent the amounts listed in paragraph 1 of the order dated April 7, 2015 and he shall hold those funds in his trust account until further order.

[14] The Respondent shall pay to the Applicant costs of this motion fixed in the amount of $2500 which shall be paid to the Applicant out of the Respondent’s share of the proceeds of sale referred to in paragraph 13 and Geary B. Shorser shall make that payment before releasing the funds to the Respondent.

Kiteley J.

Date: June 2015