



COURT OF APPEAL FOR ONTARIO

CITATION: Ferreira v. Esteireiro, 2014 ONCA 523

DATE: 20140704

DOCKET: C58421

Feldman, MacPherson and Cronk JJ.A.

BETWEEN

Maria Alida Ferreira

Appellant (Applicant)

and

Joao (John) Carlos Esteireiro

Respondent (Respondent)

Jeanie M. DeMarco, for the appellant

Judith M. Nicoll, for the respondent

Heard: July 2, 2014

On appeal from the order of Justice Suzanne M. Stevenson of
    the Superior Court of Justice, dated December 23, 2013.

ENDORSEMENT

[1]

The appellant, Maria Alida Ferreira, appeals from the order of Stevenson
    J. of the Superior Court of Justice (the Motions Judge), dated December 23,
    2013.  By that order, the Motions Judge granted summary judgment in favour of
    the respondent, Joao (John) Carlos Esteireiro, dismissed the appellants motion
    for various forms of relief, lifted the stay order of Kiteley J. of the
    Superior Court of Justice, dated October 9, 2013, described below, and awarded
    costs to the respondent in the total amount of $15,000, among other relief.

[2]

This matrimonial dispute has a tortured and troubling history.  In
    brief, the parties married in Las Vegas in 1995 and again in South Africa in
    1996.  They separated in 2005.  There are no children of the marriage.

[3]

In November 2005, the parties entered into a separation agreement (the
    Agreement), which provided for lump sum and periodic spousal support to be
    paid by the respondent to the appellant, among other matters.  Under the
    Agreement, the appellants spousal support was to terminate on the happening of
    specified events, including if she entered into a relationship resembling
    marriage.

[4]

The respondent paid periodic support, in the amount of $12,500 per
    month, from March 2006 to May 2012, whereupon he ceased making support payments
    on the basis of his belief that the appellant was in a relationship resembling
    marriage, thus terminating his support obligations under the Agreement.

[5]

The appellants ensuing application for relief was stayed by the court
    because the Agreement contained an arbitration/mediation dispute resolution
    mechanism.  An arbitration was eventually held before an arbitrator nominated
    by the appellant.  The arbitrator ruled in favour of the respondent, concluding
    that the appellant had entered into post-separation relationships resembling
    marriage at two different times, with two different men, thus triggering a
    spousal support termination event under the Agreement.  She ordered the
    appellant to reimburse the respondent for overpaid spousal support and
    subsequently awarded costs to the respondent.

[6]

A flurry of litigation soon followed.  The appellant sought leave to
    appeal the arbitral award under s. 45(1) of the
Arbitration Act, 1991
,
    S.O. 1991 c.17 (the Act).  She also sought to review the arbitral awards
    under s. 46 of the Act.  By order dated July 5, 2013, Mesbur J. of the Superior
    Court of Justice dismissed the appellants leave motion.

[7]

On July 25, 2013, the appellant commenced a fresh application  the
    subject of this appeal  in which she sought various relief, including an order
    setting aside the main arbitral award and the arbitrators costs award, as well
    as certain declaratory relief (the 2013 Application).

[8]

For his part, the respondent moved for a court order enforcing the
    substantive arbitral award.  The appellant opposed the motion on grounds that
    included some of those raised on her unsuccessful leave motion.  By order dated
    August 16, 2013, Sachs J. of the Superior Court of Justice granted the
    respondents enforcement motion.

[9]

The appellant then sought a reattendance before Sachs J., ostensibly to
    clarify aspects of the enforcement decision.  Her request for relief on the
    reattendance motion was denied by Sachs J.  In her reasons, dated September 21,
    2013, Sachs J. described the reattendance motion as entirely inappropriate
    and as a thinly disguised attempt to reargue the same issues that were argued
    before her on the original enforcement motion.

[10]

The
    respondent also moved for an order enforcing the arbitrators costs award and
    for security for costs.  By order dated October 9, 2013, Kiteley J. of the
    Superior Court of Justice granted the relief sought, but stayed the enforcement
    of her order pending disposition of a motion for summary judgment brought by
    the respondent.

[11]

As
    we have said, the Motions Judge granted the respondents motion for summary
    judgment and dismissed the appellants 2013 Application as an abuse of the
    court process.  In her detailed reasons, the Motions Judge made three critical
    findings.  First, she found there was no genuine issue requiring a trial. 
    Second, she held that the appellants 2013 Application was an abuse of process
    because the issues raised in it had already been litigated and determined on
    the leave motion before Mesbur J.  The appellant, therefore, was simply
    attempting to relitigate the same issues.  Finally, and in any event, she ruled
    that the appellants 2013 Application was commenced outside the time limits set
    under s. 47(1) of the Act.

[12]

The
    appellant now appeals to this court.  She attacks the Motions Judges decision on
    numerous grounds.  In our view, it is unnecessary to address those grounds in
    any detail.  The issues raised on appeal concern matters advanced and addressed
    in previous proceedings between the parties including, especially, in the
    proceedings before Mesbur J. and Sachs J., described above.

[13]

During
    oral argument before this court, the appellant maintained that the arbitrator
    failed to rule on a threshold jurisdictional question, namely, whether the
    preconditions to the invocation of the arbitration provisions of the Agreement
    had been satisfied by the respondent.  The appellant contends that, to date,
    there has been no ruling on this question.

[14]

This
    complaint is unsustainable.  In our view, the appellants amended statement of
    issues for the arbitration did not clearly raise this jurisdictional question. 
    Further, the arbitration proceeded by reason of a court order.  The issue of
    the arbitrators jurisdiction to determine the issues referred to her was
    subsumed in the arbitration process, in which the appellant fully
    participated.  Moreover, the matter of the arbitrators jurisdiction to conduct
    the arbitration was not raised before the Motions Judge.

[15]

In
    our view, the extensive record on appeal overwhelmingly demonstrates that the appellant
    is dissatisfied with the outcome of the arbitration and is unrelenting in her
    determination to overturn the arbitral awards made against her.  To that end,
    she has raised a host of issues in proceedings before four different judges of
    the Superior Court, with the sole purpose of avoiding enforcement of the
    arbitrators rulings.  We are compelled to observe that this strategy is both
    misconceived and duplicative of the courts process.

[16]

The
    decisions of Mesbur J. and Sachs J. are final.  The vast majority of the issues
    raised in the appellants 2013 Application and argued before the Motions Judge
    were raised before and adjudicated upon by Mesbur J.  In any event, the Motions
    Judge based her decision not only on
res judicata
or issue estoppel
    but, as well, on her own view that they had no merit.  To the extent that it
    can be said that any new issues were pursued before her, the Motions Judge
    addressed those issues directly and also rejected the appellants position on
    each of them.

[17]

We
    see no basis for appellate interference with the Motions Judges decision. 
    Indeed, we agree with it.  In particular, we agree with her conclusion that
    there is no genuine issue requiring a trial in this matter and that the
    appellants repeated attempts to relitigate issues previously determined by the
    courts is an abuse of the courts process.  We also agree, in any event, that the
    appellants 2013 Application is caught by s. 47(1) of the Act.  The appellant
    commenced her 2013 Application outside the 30-day time limit provided for under
    s. 47(1).  (The main arbitral award was made on May 23, 2013, yet the appellant
    did not commence her 2013 Application until July 25, 2013.)  The 2013 Application,
    therefore, was time-barred.

[18]

For
    these reasons, the appeal is dismissed.

[19]

The
    respondent is entitled to his costs of this appeal.  Having regard to the
    outcome on appeal and the appellants conduct throughout this litigation,
    discussed above, the respondents costs are fixed in the total amount of $10,000,
    inclusive of disbursements and H.S.T.

[20]

Finally,
    the stay order of LaForme J.A. of this court, set out in paragraph four of his
    order dated February 18, 2014, is set aside, effective 45 days from the date of
    the release of these reasons.  A copy of LaForme J.A.s order is attached
    hereto, as Schedule A to these reasons.

K. Feldman J.A.

J.C. MacPherson J.A.

E.A. Cronk J.A.





