Cash flow difficulties do not necessarily imply a lack of assets

Today’s decision in Miller v. Taylor, 2010 ONCA 17 is relevant in a number of areas:  security for costs, determining asset base for judicial interim release and family law matters where assets are important.  Put narrowly, the decision can be taken to stand for the principle that cash flow difficulties, standing alone, do not necessarily imply a lack of assets:

[3]              In our view, the order should be set aside.  We do so because the second paragraph of rule 61.06(i)(a) has not been met.  The onus of demonstrating that there is good reason to believe that the appellant has insufficient assets in Ontario to pay the costs of the appeal is on the moving party.  In this case, neither party filed any evidence respecting the appellant’s financial situation. 

[4]              In reaching her conclusion that the appellant lacks sufficient assets to pay the costs of the appeal, the motion judge relied on various comments made by the trial judge in her reasons.  The comments, however, all related to the appellant’s need for cash in the 2006 time period, not to late 2008 when the trial took place, or to late 2009 when the security for costs motion was argued. 

[5]              Moreover, because someone is experiencing cash flow difficulties does not, in our view, necessarily translate into that person not having assets.  The cash flow difficulties do indicate financial problems and, in some circumstances, might signal that the person has no assets to liquidate in order to resolve the cash flow problem.