SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Vanessa Louise Da Silva Edgerly, applicant
AND:
Tyron James Edgerly, respondent
BEFORE: TOBIN J.
COUNSEL: Nadine Russell, for the applicant
Jordan McKie, for the respondent
HEARD: October 26, 2022, by video conference
ENDORSEMENT
1The applicant moves for a Mareva injunction in aid of execution.
Facts
2Following a 15-day trial before Henderson J. where the applicant was the more successful party, costs submissions were requested. The applicant asked for costs in the amount of $252,384. The respondent proposed that he pay costs in the amount of $100,000.
3While the parties waited for the costs decision to be released, the applicant came to believe that the respondent intended to move to Mexico to avoid paying child support and any costs that might be awarded.
4The basis of the applicant’s belief is the following:
- The respondent listed his home for sale on “realtor.ca”.
- The parties’ nine-year old daughter reported to the applicant that according to the father’s girlfriend, Jessica Willis, the respondent was moving to Mexico.
- The respondent is familiar with Mexico, having spent time there in the past. As well, his parents spend extended time in Mexico every year.
- The respondent’s home and some of his personal items were listed for sale on Kijiji.
- In response to the applicant’s email asking whether the respondent was moving, he responded that he did not sell anything and that she (the applicant) hacked his account and that she posted those items for sale. He also wrote that he continued to live at his property.
- After the reasons for judgement were released on September 6, 2022, the respondent cancelled his weekend parenting time with the children and did not ask for any makeup time. This was most unusual for him. The applicant stated this was because the respondent did not want the children to see how few household contents remained at his residence.
- When he did exercise his Tuesday evening parenting time, he did not take the children to his home.
- The applicant spoke with Ms. Willis. She told the applicant that (1) the respondent planned to move to Mexico to avoid child support and costs; (2) the respondent went to the Mexico consulate in Leamington and obtained a visa to live in Mexico; and (3) the respondent was ready to leave but hoped to obtain a ten-year passport first.
5The respondent’s financial statement dated October 20, 2021, filed by him at trial, disclosed that his most significant asset was the home, which he valued at $389,000. The financial statement also disclosed that the property was encumbered by a Scotiabank mortgage, which was then outstanding in the amount of $73,848.16, and a $100,000 mortgage given by the respondent in favour of his mother.
6When this motion was first before the court on October 6, 2022, on a without notice basis, the injunction sought by the applicant was granted. The applicant was directed to serve the respondent and the motion was made returnable October 26, 2022.
7In his responding affidavit, the respondent denied that he is arranging his affairs to avoid paying child support or costs. He explained that the reason he is selling his home is he can no longer afford it. He planned to move into Ms. Willis’ home. The personal items he was selling were those that he would no longer need or be able to store at Ms. Willis’ home. He denies that he or Ms. Willis told his child that he was moving. He denies that Ms. Willis spoke to the applicant as the applicant alleges. The respondent explained not having the children on weekends or taking them to his home had nothing to do with him moving away.
Legal considerations
8The court’s jurisdiction to grant the injunction sought is found in s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43. This section is formulated as follows:
101 (1) In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so.
(2) An order under subsection (1) may include such terms as are considered just.
9The purpose of the Mareva injunction is to tie up the assets of the defendant, pending any judgment adverse to the defendant, so that they would then be available for execution in satisfaction of that judgment. It is ordering security before judgment: Chitel v. Rothbart, 1982 CanLII 1956 (ON CA), [1982] O.J. No. 3540, (Ont. C.A.) at para. 30.
10A Mareva injunction can be granted post-judgment: Lamont v. Kent, [1999] O.J. No. 277 (Gen. Div.), at para. 8. When granted post-judgment, the relief is described as a Mareva injunction in aid of execution: Coast to Coast Against Cancer v. Sokolowski, 2016 ONSC 170, at para 5.
11The purpose of the Mareva injunction post- judgment but before execution is to prohibit the dissipation of assets: Michael Wilson and Partners Ltd v Emmott, [2019] EWCA Civ 219 (Eng. C.A.), at para 40.
12A Mareva injunction can be granted to protect against avoidance of a costs order: Jet West Ltd. v. Haddican, [1992] 1 All E.R. 545, [1992] 1 W.L.R. 487 (Eng. C.A.), considered in Hilltop Group Ltd. v. Katana, [2002] O.J. No. 4136, (Ont. SCJ), at para 19.
13In Lamont, supra, Sachs J. set out the requirements for granting a Mareva injunction in aid of execution, as follows, at para.10:
- Full and frank disclosure by the plaintiff.
- Full and fair particulars of the plaintiff's claim.
- Assets of the defendant within the jurisdiction.
- A risk of removal of those assets by the defendant before judgment.
- An undertaking by the plaintiff as to damages.
Application of legal considerations
14There is no dispute by the parties regarding the first three requirements. The applicant has made full and frank disclosure of the facts giving rise to her request. Henderson J.’s order of September 6, 2022 regarding child support and October 25, 2022 regarding costs clearly establish the extent of the applicant’s claim. The respondent’s financial statement relied upon by him at trial before Henderson J. sets out his assets with some precision and that they are within the jurisdiction. This disclosure allows an injunction to be directed to specific assets and accounts.
15The respondent argues that regarding the fourth requirement, the applicant has failed to demonstrate that there is a risk that he has or intends to put his assets beyond her reach. He submits, the applicant’s claim that he is removing assets from the jurisdiction is speculative at best.
16The respondent relies upon his denials and explanations to refute the applicant’s claim about his motives and intentions.
17In this case, the evidence before the court consists of the affidavits of the parties untested by cross-examination.
18Credibility findings are very difficult to make on the basis of untested affidavits. However, it is not necessary for credibility findings to be made on this motion. The essential facts are not in dispute. The respondent’s property and some personal assets are being offered for sale by him. The property is the most significant asset he has available to satisfy the applicant’s judgment.
19What can be considered is whether the applicant’s evidence of the respondent’s intentions is persuasive in the circumstances of this case. In other words, has the applicant raised a strong prima facie case of the respondent’s intention to remove assets from the jurisdiction?
The telephone call between Ms. Willis and the applicant
20The respondent’s evidence is that, according to Ms. Willis, she did not speak with the applicant on October 5, 2022. It was in this conversation that the applicant deposes that Ms. Willis told her of the respondent’s plan to liquidate his assets and move to Mexico to avoid paying child support and costs. In response, the applicant has provided corroborating evidence that she did speak with Ms. Willis on October 5, 2022 in the form of a screenshot from her phone which provides details of the date, time, and length of the call she had with Ms. Willis.
21The respondent did not provide an affidavit from Ms. Willis which responded to the specific evidence of what was said according to the applicant.
22In civil cases, an unfavorable inference can be drawn when, in the absence of an explanation, a party fails to provide evidence from a witness who has knowledge of the facts and who would be assumed to be willing to assist that party: Claiborne Industries Ltd. v. National Bank of Canada, 1989 CanLII 183 (ON CA), [1989] O.J. No. 1048, (Ont. C. A.), at para. 48.
23The respondent did not explain why Ms. Willis, the person with whom he has exchanged vows of commitment and that they consider themselves spouses of one another, did not give evidence as to whether the conversation took place and if it did, what was said.
24In these circumstances, I infer that Ms. Willis’s evidence would have been helpful to the applicant.
The respondent’s emails to the applicant
25When the respondent was contacted by email by the applicant and asked about the sale, he was evasive. He wrote “I didn’t sell anything.” He deflected: he accused the applicant of hacking into his account to make fake posts.
The Mexican visa
26The respondent acknowledged that he obtained a Mexican visa to “ensure ease of access...”
27The applicant’s evidence, confirmed by a printout from the Government of Mexico website, is that a tourist visa is not required by a Canadian citizen to travel to Mexico for a stay of less than 180 days. The inference that follows is that a visa is required for a stay of longer than 180 days. The respondent obtaining a visa is consistent with an intention to stay in Mexico as something other than as a tourist.
Credibility finding of Justice Henderson
28The applicant asks that in determining whether the respondent intends to avoid paying his judgment by removing assets from the jurisdiction that I should consider the adverse credibility finding made against him by Henderson J. in his reasons for judgment dated September 6, 2022. She submits that the finding should be relied upon as relevant when assessing the respondent’s credibility on this motion.
29Neither counsel provided case law on this issue.
30Respondent’s counsel submitted that the adverse credibility finding by the court should not forever be used to taint the respondent’s reputation nor affect the determination of his truthfulness in this motion.
31The finding made by Henderson J. regarding the respondent’s credibility and the applicant’s request that it be considered on this motion is in essence a request that I rely upon that finding as evidence of the respondent’s reputation for untruthfulness.
32In R. v Ghorvei (1999), 1999 CanLII 19941 (ON CA), 46 O.R. (3d) 63 (C.A.), at para. 31, the court held that it was not proper to cross-examine a witness regarding a finding in another court case that his or her testimony had been rejected or disbelieved. That fact, in and of itself, did not constitute discreditable conduct.
33In Bruff-Murphy v. Gunawardena, 2017 ONCA 502, at para. 31, the Court also held in a civil case that prior comments made in another case about a witness do not amount to a finding of discreditable conduct.
34Therefore, I conclude that even though Henderson J.’s findings with respect to the respondent’s credibility was made in this case, nonetheless it should not be considered on this motion.
Conclusion
35On the whole of the evidence considered, I am persuaded that the applicant has established a strong prima facie case that there is a risk that the respondent intends to remove assets from the jurisdiction. If he is able to do so, it will make it difficult, if not impossible, for those funds to be available to satisfy the applicant’s judgment. In these circumstances, the balance of convenience favours granting the Mareva injunction in aid of execution.
36Therefore, I find that the applicant is entitled to a post-judgment Mareva injunction in aid of execution.
37The applicant has asked that she not be required to give an undertaking as to damages. As the amount of the judgment is known and the respondent may use his personal bank account to carry on with his day-to-day financial dealings, I will continue the decision of Henderson J. not to require an undertaking.
38The order of Henderson J. dated October 6, 2022 at paras. 2 – 6, including Schedule A, is to continue. However, at para. 2, reference should be to an individual, not a corporation, and at para. 5, the funds are to be disbursed in accordance with priorities determined by statute.
39The reach of the order is proportional to the risk and circumstances of this case. It allows the respondent to freely use his bank account to meet his current and ongoing financial obligations.
40The applicant has other options available to her to enforce her judgment. She should be able to pursue these options within a 120-day period.
41I therefore order that this post-judgment Mareva injunction in aid of execution shall be in effect for 120 days from the release of this endorsement. This time limit is without prejudice to the applicant applying at any time before the expiry of the 120 days for an order extending this order: See Coast to Coast Against Cancer v. Sokolowski, supra, at para. 11.
____________________________________
“Justice Barry Tobin”
Date: October 31, 2022