post-retirement spousal support, 31.19% [sic, 31.78%] of the commuted
value amounts should be disregarded, having been equalized, and the complement, 68.81% [sic, 68.22%] of the commuted value amounts, having not
been equalized, could still be considered as income for post-retirement
spousal support purposes.
Perhaps a better approach is to simply deem [the husband] to be receiving
his [pension] entitlements in the form of lifetime income, namely a fully-indexed annual pension of $72,468.48 prior to August 1, 2024 and a fully-indexed annual pension of $62,811.12 from August 1, 2024 onward. Of these
fully-indexed annual amounts, 68.81% or $49,865.56 prior to August 1, 2024
and $43,220.33 thereafter would be deemed income to [the husband] for
purposes of considering on-going lifetime spousal support.
(Emphasis in original)
Trade Capital Finance Corp. v. Cook et al.
[Indexed as: Trade Capital Finance Corp. v. Cook]
2017 ONSC 1857
Superior Court of Justice, Emery J. May 8, 2017
Injunctions — Mareva injunction — Plaintiff obtaining Mareva
injunction over defendant’s assets — M Co. obtaining writs of seizure
and sale to collect costs it was awarded against defendant in unrelated
proceedings — Mareva injunction not operating as charge on defendant’s assets and not giving plaintiff preference over rights of defendant’s
creditors — Injunction not preventing seizure of defendant’s assets by
M Co. under writs of seizure and sale.
The plaintiff was suing the defendants for damages for fraud and other causes
of action. It obtained a Mareva injunction over the assets of certain defendants,
including TCHI. In unrelated proceedings, M Co. was awarded costs against
TCHI and obtained writs of seizure and sale to enforce the costs order.
M Co. brought a motion under rule 37.14(1) of the Rules of Civil Procedure,
R.R.O. 1990, Reg. 194 as a person who was affected by the Mareva injunction to
vary the order to permit it to seize funds in one of TCHI’s bank accounts under
the writs of seizure and sale.
Held, the motion should be granted.
A Mareva injunction does not operate as a charge or an instrument granting
security against the assets of a defendant. It is an order inhibiting the defendant
and any other party bound by the order from disposing of the assets by the transfer or removal of those assets from the jurisdiction. The injunction is not something that prefers the rights of the plaintiff as an otherwise unsecured creditor
over the rights of all other creditors in the debt collection process. The order in
this case contained no reference to any proprietary claim or presumption of ownership through a trust. It applied to all of the assets of each of the Mareva
defendants. Given the broad reach of that order, it was unlikely that any other
assets of TCHI fell outside of its scope to satisfy M Co.’s costs order. M Co. was
lawfully entitled to enforce the writs of seizure and sale. Accordingly, it had met
the test for varying the Mareva injunction.