



COURT OF APPEAL FOR ONTARIO

CITATION: Abu-Saud v. Abu-Saud, 2020 ONCA
    314

DATE: 20200522

DOCKET: M51538 (C67699)

Benotto
    J.A. (Motion Judge)

BETWEEN

Amneh Tawfic Abu-Saud

Applicant (Respondent/Moving Party)

and

Azam
    Asaad Abu-Saud

Respondent (Appellant
/Responding
    Party
)

William R. Clayton, for the responding
    party

Sharon E. Hassan, for the moving party

Heard: In writing
    with brief oral submissions on May 19, 2020

REASONS
    FOR DECISION

[1]

The appellant has not complied with the support
    order that he seeks to appeal. The respondent brings this motion to adjourn the
    appeal. She also requests a partial lifting of the automatic stay for a portion
    of the equalization payment, security for costs and an extension of time to
    file her factum.

BACKGROUND

[2]

The parties were married for 27 years. They have
    two adult children. The respondent was primarily responsible for child-rearing
    while the appellant pursued a career in tax preparation. He opened a business
    in 1992 that was operated from the family home with assistance from the
    respondent. The business eventually moved to an office, and the respondent
    assisted with the business while the children were in daycare or school. In
    1996, the appellant registered as a mutual fund dealer and started a company,
    Superstar Investment Corp. He is the sole shareholder and operating mind of
    Superstar.

[3]

In 2002, the respondent stopped working for the
    family business and obtained a job at another company. In 2010 she was
    diagnosed with fibromyalgia, which required her to withdraw from the workforce.
    She has not worked since.

[4]

The parties separated in 2015 and the respondent
    brought the underlying application seeking spousal support and an equalization
    of net family property. The highly contested litigation continued until 2019
    when the trial judgment was released. In the meantime, in 2017, the appellant
    entered into an agreement with Monarch Wealth Corporation whereby this company
    became the dealer under which he sold mutual funds to his clients. Superstar
    was de-registered for the sale of mutual funds, but the appellant continued to
    carry on his business through Superstar and all fees and commissions were paid
    to it.

DECISION BELOW

[5]

The trial judge awarded the respondent spousal
    support retroactive to the date of separation. The support was ordered on both
    a compensatory and a needs basis, recognizing her important contribution to the
    management of the household and to the appellants business.

[6]

The main issue as to equalization was the value
    of the goodwill of Superstar. The trial judge accepted the evidence of the
    respondents expert that the goodwill has a value because clients continue to
    seek the appellants advice and he continues to earn money for that advice. Even
    though by the time of the trial, the appellant was de-registered as a mutual
    fund dealer, the application judge found that he continues to manage his
    clients books of business. This was evidence of the goodwill value of
    Superstar at the valuation date for the purpose of calculating net family
    property and equalization. The trial judge rejected the evidence of the
    appellants expert, which attached no value to the goodwill absent evidence of
    a special purchaser. The trial judge accepted the respondents experts
    methodology and value of Superstars goodwill as $172,500.

[7]

The final Judgment released on October 30, 2019,
    with reasons reported at 2019 ONSC 6303, provided that:

1.

The appellant
pay
    spousal support in the amount of $2,653 per month, commencing January 1, 2019;

2.

The
retroactive spousal
    support of $94,305 be payable at a minimum rate of $500 per month, commencing
    April 1, 2019;

3.

The appellant
pay an
    equalization payment of $
278,316.85,
plus
    pre-judgment interest, with one-half being payable by April 30, 2019 and the
    remainder in equal instalments commencing January, 2020 and continuing until
    January, 2029;

4.

The payments for support and equalization were
secured against the appellants holdings in Superstar.

EVENTS FOLLOWING TRIAL

[8]

The delivery of a notice of appeal automatically
    stays, until the disposition of the appeal, any provision of the order for the
    payment of money,
except a provision that awards support
or enforces a
    support order: rule 63.01(1) of the
Rules of Civil Procedure,
R.R.O.
    1990, Reg. 194 [Emphasis added.]


[9]

The appellant has not paid the support ordered
    by the trial judge. The appellant did not pay the arrears in spousal support,
    retroactive spousal support, or increased monthly spousal support. Instead he
    initially paid spousal support of $1,500 per month, pursuant to an interim order,
    instead of the increased monthly support of $2,653. Then, in January 2020 he
    further reduced his monthly support payment to $1,100. He acknowledges that he
    has not complied but submits that he pays what he can afford to pay. He has
    not sought to stay the support provisions in the judgment.

[10]

Six days after receipt the judgment, the
    appellant transferred his 50% interest in his home to his current wife for
    consideration of $2. He did not transfer his liability under the mortgage to
    her, nor did she assume it.

[11]

Counsel for the respondent wrote to Monarch
    Wealth advising the company of the order securing the payments against
    Superstar. On March 16, 2020 Monarch Wealth sent an email to counsel as
    follows:

This is to inform you that [the appellant] has
    recently redeemed 100% of the holdings in the account Superstar Investments
    Corp.

We had this
    account frozen due to the correspondence you provided to us; however [the
    appellant] sent his request directly to the fund company without our knowledge,
    which is against our policies and procedures.

[12]

The respondent submits that this breaches the
    trial judges order. The appellant admits that he withdrew $200,000 from
    Superstar but says this was to assist with the purchase of his home, not to
    make himself judgment-proof. He says he still has the shares of Superstar so he
    has not violated the judgment provisions. He further submits that he was
    required pursuant to a pre-nuptial agreement with his current wife to make the
    payment for the home. The respondent points out that this alleged agreement was
    never disclosed to her or to the trial judge and this is the first time it has
    been mentioned.

THE APPEAL

[13]

The appellant submits that the trial judge erred
    in his determination of the equalization payment owing and
support.

[14]

The equalization payment error alleged is that
    the trial judge accepted the respondents expert evidence as to the value of
    the goodwill of Superstar. He says that the equalization payment award of
    $278,316.85 should instead have been $150,685.22.

[15]

He submits as well that the trial judge erred by
    awarding retroactive support and by imputing income to him of $90,000 in order
    to arrive at the
Guidelines
amount of support.

DISCUSSION

[16]

Against this background, I address the
    respondents motion.

Support arrears

[17]

I begin with the appellants failure to pay the
    support ordered in the judgment. Compliance with an order for support is not
    optional. Support payments are not stayed pending appeal. If the appellant
    seeks relief from this requirement, the procedure is to bring a motion to stay
    the support. The procedure is not to decide for yourself how much to pay. This
    court
has repeatedly
    admonished payors who do not pay the support pending appeal. In
Murphy v. Murphy
,
2015 ONCA 69, 56
    R.F.L. (7th) 257,
the court
    refused to entertain submissions from a party who had not paid support pending
    appeal. To do otherwise would be to reward his deliberate and willful
    misconduct: at para. 6.

[18]

The court may also refuse to hear an appeal when
    the appellant is in arrears until the arrears are cured. (See: Laskin J.A. in
Dickie v. Dicki
e (2006), 78 OR (3d) 1 at para. 21, endorsed by the SCC
    in
Dickie v. Dickie

2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6
;
Brophy v. Brophy
, 180 O.A.C. 389
, at paras. 11-12;
A.A. v. Z.G.,
2016 ONCA 660
;
Siddiqui v. Anwar,
2018 ONCA 965
).

[19]

The appellants failure to pay is flagrant.
    Currently he owes more than $17,000. He acknowledges that he has the funds to
    pay.

[20]

Until his payments are brought up-to-date and he
    complies with the judgment, his appeal will not be listed for hearing. This is
    the just result and consistent with the approach of Laskin J.A. in
Dickie
at
    para. 21, and then endorsed by the SCC:

It is worth noting
    that requiring an appellant to comply with outstanding support orders, as a
    condition of proceeding with an appeal, does not make an appellant's appeal
    pointless. If the appellant is successful on appeal, the court's disposition
    can take into account the extent to which the support payments made have
    exceeded the level of support ordered on appeal.

Equalization payment

[21]

I turn to the equalization payment. The
    appellant has conceded that he owes a portion of the equalization payment. The
    respondent calculates the conceded amount to be $57,448.68
[1]
. The judgment provides that half of the equalization was to be paid
    on April 1, 2019.

[22]

Rule 63.01(5) provides that this court may order
    that the stay provision in r. 63.01(1) does not apply. Usually, the court
    looks to the merits of the appeal, the need for funds, and whether there is a
    danger that the payment will not be made:
Popa v.
    Popa
,

2018 ONCA 972, at para. 7. This is not
    a case like
Popa
. Here
    the appellant acknowledges that a portion of the equalization payment is owed.
    There is therefore no dispute about the funds requested by the respondent. In
    light of all the circumstances, it is just that the funds be paid now. The
    automatic stay on the equalization payment is hereby lifted to the extent of
    half of the admitted amount owing. Therefore $28,724.34 plus pre-judgment
    interest is payable now.

Support arrears and partial equalization to
    be paid

[23]

The appellant is to pay the respondent the
    support owed together with the portion of the equalization set out above. These
    payments are to be paid, together with outstanding interest, no later than June
    19, 2020.

Security for costs and an extension of time

[24]

The respondent
has
    not had the funds necessary to address the appeal and has not filed a responding
    factum. Consequently, she seeks security for costs and an extension of time to
    file the factum on the appeal. I will consider these requests immediately after
    June 19, 2020 or when the above payments are made, whichever is earlier.

Summary

[25]

In conclusion:

1.

The appeal is stayed until the appellant
    complies with this order.

2.

The appellant is to comply with judgment by
    bringing support payments up to date with a payment of $17,071 to the
    respondent no later than June 19, 2020.

3.

The appellant is to pay the respondent
    $28,724.34 plus pre-judgment interest to the respondent no later than June 19,
    2020.

4.

If the payments are not made, the respondent has
    leave to apply to a panel of this court to quash the appeal.

5.

If the payments are made, then I will address
    the portion of the motion dealing with an extension of time for the respondent
    to file her factum and security for costs. I therefore ask counsel to advise
    the motions office of the status of the payments.

6.

Costs of this portion of the respondents motion
    are payable to her in the amount of $3500 inclusive of HST and disbursements.

Released: May 22, 2020

M.L. Benotto J.A.





[1]
The difference between what the trial judge ordered and what he
    says it should have been less a payment already received by the respondent.


