Airst v. Airst

Ontario Court of Appeal

[1999] O.J. No. 5866, 1999 CarswellOnt 362

Herman Airst, Petitioner (Appellant in Appeal) (Husband) and Faye Airst, Respondent (Respondent in Appeal) (Wife)

Austen J.A. Judgment: February 8, 1999

Docket: CA C30390

Austen J.A.:

1             I refer to the Parties in these proceedings as “Husband” and “Wife”.

2             The Wife moves to dismiss the Husband’s appeal from the Judgment of Wein, J., dated June 18, 1998. In the alternative, the Wife moves for a partial lifting of the stay of that Judgment. The Wife’s motion is brought on the basis of a variety of grounds, perhaps the most straightforward of which is the Husband’s failure to pay into court the sum of $100,000, ordered by Weiler, J.A. on December 10, 1998, to be paid into court by December 21, 1998 as security for costs. The Husband’s motion to vary that Order has been abandoned.

3             In response to the Wife’s motion, an Affidavit has been filed. It is sworn by Anita Chhabra. According to the Wife’s counsel, Anita Chhabra is the sister of the Husband’s present counsel. Anita Chhabra describes herself in her Affidavit as “a part-time administrative assistant working with Mr. Sunny Chhabra (Mr. Chhabra), counsel for the Appellant in this matter, and as such, I have knowledge of the matters hereinafter deposed.”

4             The burden (sic) of Ms. Chhabra’s Affidavit is that the Husband did not pay the $100,000 security into court because he did not have the funds. The same was true with respect to other amounts the Husband was ordered to pay – including two payments of $50,000 cash, ordered to be paid October 26, 1998 and November 9, 1998 by Doherty, J.A. and the sum of $18,200 ordered to be paid by Wein, J. on November 30, 1998.

5             I do not accept the Affidavit of Anita Chhabra as evidence of any inability on the part of the Husband. In the first place, many of the statements made in her Affidavit purported to be firsthand knowledge. There is no named source of information or belief in information, just bald statement.

6             In the second place, many of the statements are at least “double hearsay”. For instance, paragraph 9 begins “I have been advised by Mr. Chhabra, who was advised by Mr. Airst, and I verily believe that…”. I do not accept such information as complying with Rule 39.01(4).

7             In any event the Husband’s ability to pay is and has been, through almost 17 years of litigation, a hotly contested issue and not one with respect to which second or thirdhand evidence should be accepted by this Court. I give Anita Chhabra’s Affidavit no weight. Counsel for the Wife argued that counsel for the Husband should not be [permitted] to address the Court. Reference was made to the decision of this court in Paul Magder Furs Ltd. v. Ontario (Attorney General) (1991), 6 O.R. (3d) 188 (Ont. C.A.) at pp. 191, 192 and 193.

8             I called upon counsel for the Husband to distinguish the position of Mr. Magder from that of the Husband. Counsel argued that the difference was that Mr. Magder did something he was ordered not to do, namely, opened a store, whereas the Husband failed to do something he was ordered to do, but which he couldn’t do, namely pay money.

9             In the absence of acceptable evidence to support that inability, I declined to hear further from counsel for the Husband.

10          The Husband is clearly in breach of Rule 61.06(2). The motion is therefore allowed and the appeal from Wein, J.’s Judgment of June 18, 1998 is dismissed.

11          The Wife is entitled to her costs of this motion and of the appeal.

Motion allowed.