Superior Court of Justice

COURT FILE NO.: FC-02-81-5

DATE: 2023/01/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LYNNE LA FONTAINE

Applicant

– and –

JAMES BRENT MAXWELL

Respondent

COUNSEL: Aaron Franks and Kristy Warren for the Applicant Heather Hansen and Jonathan Robinson for the Respondent

HEARD: December 15, 2022.

DECISION ON MOTION

Audet J.

[1] This is a motion by James Maxwell (the appellant and respondent in the family law proceeding, hereinafter “Mr. Maxwell”) to stay the arbitration award of Kathryn D'Artois ("the Arbitrator") dated December 16, 2021, as amended January 31, 2022 (“the Arbitration Award”), and her final costs award dated January 27, 2022 (“the Costs Award”) pending the outcome of his appeal.

[2] Lynn La Fontaine (the respondent in the appeal and applicant in the family law proceeding, hereinafter “Ms. La Fontaine”) asks that Mr. Maxwell’s motion be dismissed. In the alternative, she brings her own cross-motion seeking an order requiring Mr. Maxwell to provide security for the amounts owing under the Arbitration Award, the Costs Award and the costs of Mr. Maxwell’s appeal.

BACKGROUND AND LITIGATION HISTORY

Family History

[3] The parties separated in November 2000 after a 14-year relationship (11 years married). They have three children together, Carter (now 30), Davis (now 28) and Sydney (now 26). In September 2004, the parties entered into a separation agreement which resolved the issues arising from their separation, including parenting, child support, spousal support and property (“the Separation Agreement”). Pursuant to the Separation Agreement, Mr. Maxwell was required to pay Ms. La Fontaine child support in the amount of $1,500 per child per month, and spousal support in the amount of $3,000 (net) per month. Mr. Maxwell was also required to pay Ms. La Fontaine $158,076.63 as a property settlement, at a rate of $1,501.29 a month.

[4] After Mr. Maxwell failed to abide by the financial terms of the Separation Agreement, Ms. La Fontaine retained a lawyer and filed the Agreement with the Family Responsibility Office for enforcement. A court proceeding was also started. Eventually, the parties agreed to have their claims determined by way of a private arbitration process and in March 2012 they entered into an Arbitration Agreement appointing Ms. D'Artois as the arbitrator.

The Arbitration

[5] It took the parties nearly nine years to reach the arbitration hearing due, among other things, to the complexity of the issues raised by the case and Mr. Maxwell’s failure to comply with his obligation to provide full and frank financial disclosure. The arbitration hearing was conducted over 23 days between February and April 2021. It was a long and protracted affair which culminated into a 616 page-long arbitration decision released on December 16, 2021.

[6] In her decision, the Arbitrator set aside the support provisions of the parties' Separation Agreement on the grounds that they were unconscionable. She then proceeded to determine Mr. Maxwell’s income and child support obligations for all relevant years, in addition to quantifying outstanding amounts owing by Mr. Maxwell to Ms. La Fontaine in relation to the property provisions contained in the Separation Agreement (which provisions were not set aside).

[7] Ultimately, the Arbitrator required Mr. Maxwell to pay to Ms. La Fontaine the following amounts:

a. $99,643.31 in satisfaction of a promissory note;

b. $24,912.58 for taxes owed by Ms. La Fontaine to the Canada Revenue Agency;

c. $1,647,111 in lump-sum retroactive basic child support for the children;

d. $151,884 in lump-sum retroactive child support in respect of section 7 expenses for the children;

e. $88,173 in lump-sum retroactive child support in respect of section 7 expenses for Davis, and;

f. $3,000 in ongoing monthly child support for Davis who has significant mental health issues and, in the opinion of the Arbitrator, continued to be dependent on his parents for support.

[8] In addition to the above, on January 27, 2022, the Arbitrator released her decision on costs and awarded Ms. La Fontaine $797,694.76.

Mr. Maxwell’s appeal

[9] Mr. Maxwell did not appeal the awards related to property issues made by the Arbitrator and has paid the amounts owing in satisfaction of the promissory note ($99,643.31 plus interests) and the debt owing to the Canada Revenue Agency ($24,912.58). Although he initially appealed her decision to set aside the support provisions of the Separation Agreement, he subsequently changed his position and is no longer appealing that part of the Arbitration Award.

[10] Mr. Maxwell appeals all other awards made by the Arbitrator, as set out in his Amended Notice of Appeal, on the ground that the Arbitrator erred in mixed fact and law, or law, in the following ways:

a. She held that full table child support was payable or is retroactively payable for the children each month until they reached age 22, despite no longer qualifying as children of the marriage in accordance with the terms of the parties' separation agreement;

b. She erred in the calculation of Mr. Maxwell’s income for support purposes:

i. in her application of sections 16 through 19 of the Child Support Guidelines O.Reg. 391/97 as am. (“the Guidelines”), including in her treatment of pre-tax corporate income, by attributing income to Mr. Maxwell under section 19 that was otherwise imputed to him under section 18 of the Guidelines; and,

ii. in failing to set out fully the basis of her calculation of Mr. Maxwell's income, including the amount she grossed up as components of his income under section 19;

c. She included in Mr. Maxwell’s income non-recurring amounts that significantly increased his income for support purposes;

d. She failed to assess the appropriateness and quantum of a retroactive award of child support, including, in particular, in her assessment of the circumstances and needs of the children, the blameworthy conduct by the payor, and, considering the size of the retroactive child support award, the hardship to the payor;

e. She erred, including by exceeding her jurisdiction, by making an award for on-going support for the parties' adult son, Davis, which was not an issue submitted for arbitration pursuant to the parties' Arbitration Agreement;

f. She refused to permit Mr. Maxwell’s witness, Mark Taudien, from testifying at the arbitration.

[11] It is important to note that the Arbitration Agreement signed by the parties allows appeals without leave only on questions of law or mixed fact and law. Appeals on questions of facts were waived by the parties.

THE PARTIES’ POSITION

[12] Mr. Maxwell seeks an order staying paras. 5 and 15 of the Arbitration Award which require the payment of $1,887,168 lump-sum retroactive child support plus interests, and of the Costs Award which requires him to pay $797,694.76 plus interests to Ms. La Fontaine (forthwith) pending the outcome of his appeal. In the alternative, he seeks a stay on the following terms:

a. By December 15, 2022, he will pay to Ms. La Fontaine $200,000, and;

b. Commencing January 15, 2023, he will pay to Ms. La Fontaine $8,333 per month, pending the outcome of the appeal.

[13] Ms. La Fontaine seeks an order dismissing Mr. Maxwell’s motion for a stay of any of the provisions of the Arbitration Award or the Costs Award. In the alternative, if the Court is prepared to grant a stay, she seeks an order imposing the following terms on Mr. Maxwell:

a. That he be required to provide security in respect of any amounts owing pursuant to the Arbitration Award, by forthwith paying that amount into Court and/or by forthwith providing a collateral mortgage against real property for the total amount stayed;

b. That he be required to provide security for Ms. La Fontaine's costs in respect of his appeal in the amount of $75,000, by paying that amount into Court within 20 days.

[14] It is important to mention that Mr. Maxwell did not seek a stay of the provisions of the Arbitration Award requiring him to pay $3,000 per month to Ms. La Fontaine in child support for Davis. It is also important to note that Mr. Maxwell does not dispute Ms. La Fontaine’s request for an order requiring him to provide security for costs in relation to his appeal. However, in his view the amount of $20,000 would be more appropriate.

[15] Finally, it is not disputed that even if Mr. Maxwell is fully successful in his appeal, he will still be required to pay at least $500,000 (on account of retroactive child support and costs), in addition to the amounts he has already paid to satisfy the property provisions of the Arbitration Award.

PRELIMINARY OBJECTION RAISED BY Ms. LA FONTAINE

[16] At the outset of the motion hearing, Ms. La Fontaine asked the Court to deny Mr. Maxwell right of audience on the basis that he was in breach of many provisions of the Arbitration Award (which has now been incorporated into a court order). Most notably, Mr. Maxwell has failed to pay ongoing child support of $3,000 per month for an entire year following the release of the Arbitration Award, and thereafter has arbitrarily reduced the amount he was required to pay on a monthly basis, resulting in $41,703.97 in post-Arbitration Award child support owing.

[17] In addition to the above, it was Ms. La Fontaine’s submission that Mr. Maxwell’s refusal to pay, at the very least, the minimum amount he knew will be owing even if he is entirely successful in his appeal ($500,000), was simply the continuation of his deceptive, manipulative and blameworthy conduct which permeated the entire arbitration process. As she put it, by failing to pay any of the amounts owing under the Arbitration Award and proposing to pay a large sum of money but only if the court was prepared to grant him a stay, Mr. Maxwell was continuing his game of “catch me if you can”, using his financial power to apply pressure against Ms. La Fontaine, and blackmailing the court.

[18] For oral reasons given on that day, I refused to hear Mr. Maxwell’s motion until and unless he paid to Ms. La Fontaine the sum of $41,000, representing arrears (rounded up) owing on account of ongoing support post-Arbitration Award, as well as $200,000 representing the amount that he claimed to have at his immediate disposal to fulfill the terms of his alternative position on this motion (a stay on conditions).

[19] If this amount was paid by 1 p.m., I would hear the motion. Otherwise, it would be adjourned to a date after he complied with the above.

[20] Mr. Maxwell paid $241,000 to Ms. La Fontaine that morning, before 1 p.m., and I proceeded to hear this motion.

STAY PENDING APPEAL

Legal Framework

[21] The delivery of a notice of appeal from an interlocutory or final support order does not automatically stay a support order in the family law context. To stay a support order pending the outcome of an appeal, a party must bring a motion to suspend the support order (rule 63.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194). An order for costs, however, is automatically stayed by the filing of the notice of appeal.

[22] The Supreme Court of Canada has clearly enunciated the legal principles applicable to a party’s request to stay a judgment pending appeal in RJR-Macdonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at para. 48 (see also Spadacini Kelava v. Kelava, 2021 ONCA 345 at paras. 16-17). A court may grant the stay if it is satisfied that:

a. The moving party’s appeal raises a serious question to be tried;

b. The moving party will suffer irreparable harm if the stay is denied; and

c. The balance of convenience favors granting the stay.

[23] The Court noted that the overriding question is whether the moving party has shown it is in the interests of justice to grant a stay. The court is to start from the proposition that a successful party is entitled to the fruits of his or her judgment and should not be deprived of them unless the interests of justice require that they be withheld pending appeal.

[24] In BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, the Ontario Court of Appeal stated that the three criteria in RJR-Macdonald "are interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay" (see para. 19).

1- Serious question to be tried

[25] In deciding whether there is a serious issue to be tried, the court must make a preliminary assessment of the merits of the case and consider the relative strength of each party's case (RJR MacDonald, above). The threshold to establish a serious question on the appeal is low. The motion judge must make a preliminary assessment of the merits of the case but only to the extent of determining that the issue on appeal is neither frivolous nor vexatious (Vasilodimitrakis v. Homme, 2020 ONSC 2355, at para 58). But where, as a practical matter, the rights of the parties will practically be determined by the outcome of the stay motion, the court may give significantly more weight to the strength of the merits of the appeal (Tovmasyan v. Petrosian, 2022 ONCA 583 at paras. 8-9).

[26] I am of the view this this first part of the test is met in this case. It is not my role to decide whether the appeal lodged by Mr. Maxwell will be successful. My role is to assess whether the grounds of appeal raised by him have merits at first glance, without the need to undertake an extensive review.

[27] Mr. Maxwell submits that the Arbitrator erred when she ordered full table child support for the children each month, until they reached age 22, despite the fact that during some of that time, they were living away from home while pursuing their post-secondary education outside of the city, province or even country, contrary to the legal principles set out in s. 3 of the Guidelines. Mr. Maxwell also argues that the Arbitrator erred in the way she applied sections 16 to 19 of the Child Support Guidelines, including in her treatment of pre-tax corporate income, the way she grossed up components of his income under section 19 and by including in his income non-recurring amounts.

[28] While I agree with Ms. La Fontaine that these provisions of the Child Support Guidelines grant the court large discretionary powers in the determination of a payor’s income for support purposes, the manner in which they ought to be applied requires compliance with the established legal framework set out by the Guidelines and the caselaw that applied it. Failure to do so may result in the decision being successfully appealed.

[29] Mr. Maxwell also submits that the Arbitrator did not properly apply the factors relevant to the determination of a retroactive child support claim in a manner consistent with the Supreme Court of Canada’s seminal case of S. (D.B.) v. G. (S.R.), 2006 SCC 37 (which factors were further developed in Michael v. Graydon, 2020 SCC 24 and Colucci v. Colucci, 2021 SCC 24). More specifically, he argues that the Arbitrator focused entirely on some of the D.B.S. factors while completely failing to consider other equally relevant factors, such as the circumstances and needs of the children, Ms. La Fontaine’s unexplained delay of three years in the arbitral process, and the size of the award in relation to the hardship its payment might cause the payor.

[30] Finally, Mr. Maxwell’s appeal raises the issue of the Arbitrator’s jurisdiction to make an ongoing support order for Davis, which he claims was not an issue submitted for arbitration pursuant to the parties' arbitration agreement, and of an alleged denial of natural justice by refusing to allow one of his witnesses to testify on issues which were at the heart of the parties’ dispute.

[31] In my view, none of the questions raised by Mr. Maxwell on appeal can possibly be characterized as frivolous or vexatious, nor can I conclude on a perfunctory review of the case that the grounds of appeal have no merit.

[32] In her submissions, both written and oral, Ms. La Fontaine essentially attempted to convince me that none of Mr. Maxwell’s grounds of appeal would ultimately be successful. That is not the test on a motion to stay.

[33] No one argues that the rights of the parties will practically be determined by the outcome of this stay motion.

2- Irreparable harm

[34] The burden of proving irreparable harm is on Mr. Maxwell. The courts define "irreparable harm" as "harm which either cannot be quantified in monetary terms or which cannot be cured" (Mudry v. Danisch, 2014 ONSC 4335, at para. 170). The Court of Appeal has warned that courts should avoid taking a narrow view of irreparable harm (Livent Inc. (Receiver of) v. Deloitte & Touche, 2016 ONCA 395). At the same time, in order to meet this part of the test the evidence adduced must be clear. Irreparable harm cannot be founded on mere speculation. The evidence must be sufficient to support a finding that the moving party would suffer such harm, not that it is merely likely (754223 Ontario Ltd. v. R-M Trust Co., [1997] O.J. No. 282, 1997 CarswellOnt 409, at para. 40).

[35] Mr. Maxwell states that he would suffer irreparable harm to his personal and business finances if his request for a stay is denied. He asserts that he does not have liquidity in his personal assets or his business interests to satisfy any meaningful portion of the Arbitration Award or the Costs Award. He states that there are no upcoming liquidity events in any of the companies in which he has an interest or in those within the Family Trusts in which he is a shareholder, and that forcing a liquidity event may damage his credibility and business reputation and may have serious implications on the viability of the Family Trusts.

[36] According to Mr. Maxwell, if a stay is not granted, his right of appeal will be made nugatory: he will not be able to appeal or otherwise vary the terms of the Arbitration Award or Costs Award; he will be immediately found in default of almost $2.7 million, and as a result of his persistent and lengthy default, he may not be granted the right of audience before the appellate court.

[37] The strength of Mr. Maxwell’s evidence with respect to his ability to pay the Arbitration and Costs Awards is significantly weakened by the Arbitrator’s many, very damaging factual conclusions in relation to his deception, manipulation, uncooperative behaviour, refusal to make full financial disclosure, blameworthy conduct, and attempts to obfuscate his income and avoid his financial obligations to the parties' children. The Arbitrator found that he had provided disclosure in "dribs and drabs" and made less than reasonable efforts to clarify his disclosure or meet his disclosure obligations prior to the hearing. She further found that he intentionally misled his accountants, his own expert, his own counsel, Ms. La Fontaine’s expert, and her counsel in respect of his true financial circumstances.

[38] Mr. Maxwell’s assertion that he does not have liquidities in his personal assets or business interests with which to satisfy the Arbitration Award is further undermined by the following evidence (or lack thereof) before me:

• In his sworn financial statement filed for the purpose of this motion, Mr. Maxwell has not included a value for his personal business holdings, aside from stating that his holding company's retained earnings totaled $1,466,230 as of June 30, 2021, and the loans payable totaled $1,403,629. Mr. Maxwell produced the financial statements for the holding company for the December 31, 2021, year-end, which show that the company's assets included "advances to affiliated companies" of $2,243,865 and "investments" of $291,759 as of December 31, 2021. No backup documentary evidence was provided regarding these assets, except that Mr. Maxwell asserts that the company has "investments made up of loans to companies that have no obligation to repay or no ability to repay at this time";

• Mr. Maxwell did not include any value in his financial statement for the business holdings he holds indirectly through the two Family Trusts in which he has an interest, simply stating "I am not including a value for family law purposes as I am one of several discretionary beneficiaries and equalization is not an issue." Notably, and undisputedly, Mr. Maxwell is the sole trustee of both Family Trusts as well as a beneficiary of both Trusts, and the Arbitrator specifically found that he exercised unfettered discretion in respect of all transactions involving both Trusts, including distributions made to the Trusts from various entities; distributions made to beneficiaries; expenses paid by the Trusts; and investments made by the Trusts;

• Mr. Maxwell and his wife, Dawn, live in a luxurious home in Rockcliffe Park, Ottawa which was purchased by Mr. Maxwell’s holding company in 1999, transferred to his long-time friend and business partner Mr. Taudien in 2010, and then transferred from Mr. Taudien to Dawn in 2012 for $1.00 (around the time this litigation was initiated). While the current value of this property is unknown (Mr. Maxwell did not include this asset in his financial statement because it is registered in his wife’s sole name), there is currently a $2,400,000 mortgage secured against the property, which speaks volumes not only as to the value of the home, but also as to the couple’s financial capacity to finance and maintain it. This is in addition to the parties’ four-million-dollar vacation home in Jupiter, Florida, and the lavish cottage they recently acquired on Lac McGregor in Quebec (in Dawn’s sole name, of course). Despite that Ms. La Fontaine specifically raised the possibility of Mr. Maxwell borrowing against these properties in her affidavit to pay the money owing to her, Mr. Maxwell did not include any evidence in his reply affidavit about his ability to borrow funds.

[39] I find that Mr. Maxwell is in a position to immediately satisfy the child support arrears he was required to pay pursuant to the Arbitration Award ($1,887,168), and that doing so will not cause him irreparable harm. Mr. Maxwell not only has access to immediate cash, in the forms listed below, he also has significant borrowing power, which is obvious by simply looking at some of the assets and debts he and his wife currently have. Among other things;

a. The vacation home owned jointly by Mr. Maxwell and his wife in Florida is worth, according to Mr. Maxwell’s financial statement, approximately $4,000,000. The property is encumbered with a mortgage of approximately $1,000,000, meaning there is approximately $3,000,000 of equity in the property. Mr. Maxwell has remained completely silent with respect to his ability to further encumber the Florida property to pay the Arbitration Award. His wife’s evidence to the effect that she “does not wish to sell the home” which is “very special to her” falls very short of establishing the kind of harm required to meet this part of the test;

b. Mr. Maxwell’s home in Rockcliffe, which is registered in his wife’s sole name, has a $2,400,000 mortgage secured against it which is in their joint names. They have only drawn down approximately $1,780,000 on the mortgage, meaning there is approximately $620,000 available. Mr. Maxwell has not provided any evidence with respect to his ability to draw on the $620,000, or to further encumber this property;

c. The cottage owned by Mr. Maxwell’s wife on Lac McGregor, Quebec, was purchased in January 2020 for $895,000. There is no mortgage registered against the cottage. Mr. Maxwell has not provided any evidence with respect to his and his wife’s ability to encumber the cottage (or how it was acquired);

d. Mr. Maxwell has a personal RBC line of credit, which had $129,000 of credit available as of September 2022 (notably, $145,000 was repaid by Mr. Maxwell towards this line of credit between March 31, 2022 and September 25, 2022);

e. Mr. Maxwell has an RBC joint investment account, which had a balance of approximately $115,000 as of September 2022, and an RBC RRSP, which had a balance of approximately $340,000 as of September 2022. Mr. Maxwell’s assertion that, if forced to cash in on these assets, he would be left with “no retirement fund”, is comical in light of the personal assets he and his wife own and maintain, his significant business interests, and his current lifestyle.

[40] Mr. Maxwell is undoubtedly a very wealthy man, and there is no doubt in my mind that he has access to significantly more financial resources than what he claims before this court. It is also quite obvious based on the evidence before me that Mr. Maxwell and his wife have organized their financial affairs in a way to shield Mr. Maxwell’s assets from his creditors’ reach. I am in no way swayed by Mr. Maxwell’s expressed concerns over his ability to recover any overpayment of child support from Mr. La Fontaine in the future, in the event that his appeal is successful. Ms. La Fontaine has been in that very position for over ten years.

[41] In my view, Mr. Maxwell’s position on this part of the test is extremely weak.

3- Balance of convenience

[42] The third part of the test on a motion to stay involves a determination of who would suffer the greatest harm from granting or refusing the stay, pending a decision on the merits (Klasios v. Klasios, 2019 ONSC 4841 at para. 22).

[43] The evidence before me clearly establishes that Ms. La Fontaine has depleted capital and incurred significant debt due to Mr. Maxwell’s failure to pay proper child support since the parties separated in 2000, and the protracted litigation that ensued as a result, mainly, of Mr. Maxwell’s conduct in the litigation. While it can be said that Ms. La Fontaine’s significant debt load has not increased since the arbitration process came to an end, the evidence is clear that she has had to borrow significant sums not only to pursue her right to child support but also to pay the children's expenses over the years and fund her litigation costs. Ms. La Fontaine’s only significant asset is her modest home, which is encumbered with a $395,000 mortgage, and a $200,000 collateral mortgage in favor of her former lawyer as security for outstanding legal fees. She has no other significant assets or savings, and she is now forced to continue to incur legal fees to defend Mr. Maxwell’s appeal.

[44] The same cannot be said of Mr. Maxwell. Beyond the possible inconvenience of further encumbering or selling one of the luxurious properties that he and his wife own, or borrowing money (including from the two Family Trusts that he completely controls and for which no information has been provided), I see no harm or inconvenience for Mr. Maxwell although I acknowledge that the amount he would be required to pay “forthwith” if his motion is not granted (almost 2.7 million dollars) would be extraordinarily high.

[45] In light of all the above, a proper balance would be struck in my view by requiring Mr. Maxwell to pay forthwith the Arbitration Award ($1,887,168), while granting a partial stay of his obligation to pay the Costs Award (assuming a stay is required in relation to that part of the Arbitration Award) pending the outcome of his appeal. As Mr. Maxwell’s best-case scenario would require him to pay $100,000 towards costs – at least in his view – he shall be required to pay this much forthwith.

[46] Given that Mr. Maxwell has already paid $200,000 towards the Arbitration Award, the balance owing and which must be paid forthwith is $1,687,168, plus interests to this day. There is also a small amount still owing on account of child support arrears accrued post-Arbitration Award.

SECURITY FOR COSTS

[47] Security of costs for a motion is governed by Rule 24(13) and 38(26) of the Family Law Rules, O.Reg. 114/99 as am., as well as Rule 56.01(1) of the Rules of Civil Procedure.

[48] An order for security for costs is discretionary. On a motion for security for costs, the prevailing consideration is the overall justice of the case. In Yaiguaje v. Chevron Corporation, 2017 ONCA 827, the Court of Appeal held that, even where one of the criterion in Rule 56.01(1) is met, the "correct approach is for the court to consider the justness of the order holistically, examining all the circumstances of the case and guided by the overriding interests of justice to determine whether it is just that the order be made."

[49] The parties do not dispute that an order for security for costs is appropriate in the circumstances of this case. Since the Costs Award requires Mr. Maxwell to pay $797,694.76, which by virtue of my decision will be stayed pending his appeal, it is appropriate to require Mr. Maxwell to post security for the costs of his pending appeal.

[50] It is very easy to contemplate, given the lengthy arbitration process that preceded this motion, the costs invested by both parties in that process, the number and relative complexity of the issues to be decided on appeal and the level of experience of the parties’ counsel, that this appeal will be very expensive. In my view, an order requiring Mr. Maxwell to post security for costs in the amount of $75,000 is appropriate here, and an order shall issue to that effect.

SECURITY FOR OUSTANDING COSTS

[51] Given that I have dismissed Mr. Maxwell’s motion to stay his obligation to pay the Arbitration Award forthwith, I am not prepared to require him to provide security for the amount owing under the Costs Award.

ORDER

[52] Based on the above, the following order shall issue:

a. Mr. Maxwell's motion for an order staying paragraphs 5 and 15 of the Arbitration Award is hereby dismissed. The sum of $1,687,168, plus interests accrued (on the full amount) since the date of the Arbitration Award, is payable forthwith.

b. Mr. Maxwell’s motion for an order staying paragraphs 1 and 2 of the Costs Award is granted in part. He shall be required to pay $100,000 forthwith, plus interests accrued since the date of the Arbitration Award on that amount only, and the payment of the balance owing ($697,694.76 plus interests) will be stayed pending the outcome of his appeal.

c. Ms. La Fontaine’s motion for an order requiring Mr. Maxwell to provide security in respect of any amounts owing under the Costs Award is hereby dismissed.

d. Mr. Maxwell shall provide security for Ms. La Fontaine's costs in respect of his appeal in the amount of $75,000, by paying that amount into Court within 20 days, in accordance with rules 24(13) and 38(26) of the Family Law Rules.

e. Ms. La Fontaine shall not be required to serve or file her responding materials in the context of Mr. Maxwell’s appeal until such time as Mr. Maxwell has fully complied with all the above. Once he has, Ms. La Fontaine shall have 30 days within which to serve and file her responding materials.

COSTS FOR THIS MOTION

[53] If the parties cannot agree on costs, they may file brief written submissions of no more than three (3) pages, double-spaced, excluding bills of costs and offers to settle, in accordance with the following timelines:

a. Ms. La Fontaine to serve and file her submissions by January 20, 2023;

b. Mr. Maxwell to serve and file his submissions by February 3, 2023;

c. Ms. La Fontaine’s reply, if any (not to exceed one page), shall be served and filed by February 10, 2023.

Madam Justice Julie Audet

Released: January 06, 2023