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For those who don’t spend their days working in the world of the law, it’s natural to think that appeals of decisions might be the norm. However, appeals aren’t always allowed. Although they can be requested, the courts can reject an application for an appeal. In other cases, such as one case recently heard before the Court of Appeal for Ontario, an appeal might be allowed, but a low chance of success may cause the courts to put conditions on the appeal. In this case, Gelman & Associates’ Paul Slan and Annie Yektaeian represented the respondent.
We wrote previously about the lower court decision of this case, here.
Appeal follows family court decision
The matter followed a family court decision in which the husband’s claims of unjust enrichment and resulting trust were dismissed, with costs awards being made in favour of the wife. The husband told the court he planned on appealing the decision but asked for an extension of time to serve and file the materials needed for the appeal.
The court stated that while the motion is not “strenuously opposed,” the wife asked that the automatic stay of the costs award be lifted. This would mean she would be awarded costs before the appeal is heard, on the understanding they may have to be paid back if the appeal is successful. In the alternative, she asked that the husband be required to post security for the costs award pending the appeal.
The wife’s reasoning behind her request was that the appeal has low prospects for success, adding that she feels it will be “nearly impossible” to collect on the costs orders. She added that the husband arranged his affairs in a way that shields him from creditors and provided the judge with an inaccurate representation of his finances.
This is something the trial judge agreed with, stating the husband had provided two inexplicably different financial pictures. The Court said, “it is said that the appellant has no assets when it suits his purpose, but can produce assets when it does, such as when resisting a motion for security for costs.”
Husband argues no security is needed
The husband said there is no basis for a security award for costs or the appeal, adding that his appeal was not frivolous and vexatious, and that he has a history of complying with costs orders. He added that the wife had not provided any evidence of prejudice on her part that would justify the remedy she was seeking.
The Court found that while the appeal was not frivolous and vexatious, it appeared to have little chance of success since it essentially asks the Court to re-litigate the trial and overturn the judge’s findings of fact.
While that would not normally be enough to warrant the relief sought by the wife, the Court did state that the husband’s management of his business and financial affairs might make it nearly impossible for the wife to collect on awards of costs against him if she was successful in the appeal.
The Court found that since the husband has access to the funds needed to satisfy a costs award, and putting them up would not prevent him from pursuing his appeal, he should be ordered to do so.
The family lawyers at Gelman & Associates are here to help you in your time of need. Contact usto learn how we can help protect your rights and assets during a separation, divorce or any other family law matter. In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for a confidential initial consultation.