



COURT OF APPEAL FOR ONTARIO

CITATION: Benarroch v. Abitbol, 2018 ONCA 203

DATE: 20180301

DOCKET: M48651 (C64319)

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)

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 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 appellants 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.


