2013 ONSC 899, 2013 ONSC 899

CITATION : Purcaru v. Seliverstova , 2013 ONSC 899 COURT FILE NO.: 491/12 DATE: 20130207 SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT RE: Felicia Purcaru, Applicant (Moving Party) AND: Marina Seliverstova, e t al , Respondent BEFORE: MOLLOY J. COUNSEL: Felicia Purcaru, in person Gary S.

Joseph , for the Respondent HEARD: January 30, 2013 at Toronto MOLLOY J: ENDORSEMENT [ 1 ] Felicia Purcaru seeks leave to appeal to the Divisional Court from the interlocutory Order of Penny J. dated September 27, 2012, directing Ms Purcaru to provide a detailed accounting to the respondent as to when and to whom the proceeds of sale of Unit 1902, 30 Gloucester were disbursed. [ 2 ] In order to meet the test for obtaining leave to appeal, an applicant must demonstrate either: (

a) that the order in question is in conflict with another decision on a question of principle and that it is desirable that leave be granted; or, (

b) that there is reason to doubt the correctness of the order and the matter involves an issue of general importance going beyond the interests of the individual litigants. [ 3 ] Ms Purcaru has failed to satisfy any aspect of either branch of the test. [ 4 ] This dispute traces its roots to bitter and protracted matrimonial litigation between Ms Purcaru and her former spouse, Dan Purcaru. Ms Purcaru has obtained substantial Orders for support and equalization payments, which were largely ignored by her former husband. As a result of Mr.

Purcaru’s default, and his other breaches of court orders, there are substantial arrears owing to Ms Purcaru for equalization payments and child support. [ 5 ] The respondent Marina Seliverstova is a former girlfriend and business partner of Dan Purcaru. Ms Purcaru alleges that Ms Seliverstova assisted Dan Purcaru to hide and dispose of assets in order to thwart the court orders against him. She commenced the within litigation against Ms Seliverstova, and others, alleging various fraudulent conveyances and improper preferences.

This action is still continuing. [ 6 ] Orders were made by Czutrin J. in 2010 and 2011 vesting title in Ms Purcaru with respect to a number of properties previously owned by Dan Purcaru and directing the sale of those properties to partially satisfy the arrears owing to her. The property which is the subject of this leave motion is the last of the properties to be sold. That sale was completed in September, 2012. [ 7 ] Ms Seliverstova brought a motion for security for costs against Ms Purcaru back in 2010.

Ms Purcaru alleged before me that this security for costs motion had never been brought and that the respondent had misrepresented to Penny J. that it had been brought, resulting in the Order made from which leave is now sought. The actual security for costs motion was not in the record filed by either party. However, it would appear from comments made by Czutrin J. at a hearing before him on October 28, 2010 that it was before the court at that time and had simply not been reached. Ms Purcaru’s counsel at that time seemed to be aware of it.

Because the actual motion was not in the record and Ms Purcaru was adamant that it did not exist, I asked counsel for Ms Seliverstova to send it to me. He has done so. I am satisfied that the motion was in fact brought and is still pending.

Further, Penny J. was fully aware of this, was not under any misapprehension as to the facts, and indeed was somewhat critical of the respondent for not having brought the security for costs motion forward since that time: (see Penny J.’s Endorsement dated June 21, 2012, paras. 28-38). [ 8 ] Ms Purcaru also alleged that Penny J. was under a misapprehension with respect to the terms of an Order of Czutrin J. which made it clear that Ms Seliverstova had consented to the payment of the proceeds of sale of Unit 1902, 30 Gloucester to Ms Purcaru, without any requirement that those proceeds be held in trust.

She claimed that she had not been given an opportunity to point this out to Penny J. on the motion. I do not see that Penny J. was in anyway confused or misled as to the terms of Czutrin J.’s Order. The point was made in Ms Purcaru’s affidavit, which was before him. Also, the Order itself was before him. Penny J. had been managing this file for some time and was quite familiar with it. There is no basis for the suggestion that his order for an accounting flowed from any fundamental misapprehension of fact. [ 9 ] I also find no error of law by the motion judge.

All that was ordered was an accounting of the sale of the proceeds. This is a simple and non-contentious matter. Ms Purcaru points to case law about orders for child support not being subject to attachment by creditors of the mother. There is no question that if the proceeds of this sale were applied to child support arrears, the claim by Ms Seliverstova cannot take priority. Indeed, that is conceded by Mr. Joseph (for the respondent) and is also apparent from Penny J.’s prior

endorsements that he was alive to that issue. In the Order that is the subject of this motion, there was no finding with respect to priority, and no finding that the respondent is entitled to trace any funds paid to Ms Purcaru in respect of child support arrears. All the respondent seeks to determine is whether, after accounting for the proceeds of the sale of the various properties and other monies received directly from Dan Purcaru, there are still any amounts owing on account of child support. That is something to which the respondent is entitled, and that is all that was ordered.

Thus, there is no case law conflicting with the decision of Penny J. and I have no reason to doubt the correctness of his order. [ 10 ] Further, this is strictly a dispute between the parties. There is no general issue of importance to the public at large. This is not a case turning upon the rights of children for support, or the rights of single mothers.

It is about monies received by Ms Purcaru and her obligation to provide an accounting for them. [ 11 ] Accordingly, the test for leave to appeal has not been met and this motion is dismissed. [ 12 ] In the course of argument, Ms Purcaru produced a document that she filed in the matrimonial proceedings with her ex-husband (Court Files 04-FD-29927-FIS and FS-10-16657) dated November 19, 2012. According to Ms Purcaru, this document provides a full accounting of all the proceeds of sale, including the one at issue here, which is Appendix 4 to the document.

She advised that she did not provide a copy to the respondent because she did not believe she was required to do so. Mr. Joseph, for the respondent, does not accept that this is an adequate accounting. I leave that issue to be determined in the ongoing proceedings between the parties. [ 13 ] In all of the circumstances, the respondent is entitled to her costs. Although the applicant is not represented by counsel, this was a motion devoid of merit.

Further, since Ms Purcaru had already done what she considered to be an accounting in the other proceeding, it would have been a simple matter to serve that on the respondent in this proceeding. The adequacy of that document, and whether anything further would be required, could then have been easily dealt with before Penny J. without the expense and delay associated with this motion for leave to appeal. I do not agree that costs should be on a substantial indemnity basis, however. Costs are fixed at $1500.00, payable in 60 days. Approval of the form and content of this order is hereby dispensed with. MOLLOY J.

Date: February 7, 2013.