COURT OF APPEAL FOR ONTARIO
Weiler, Blair and van Rensburg JJ.A.
BETWEEN
Julia Estrada
Applicant (Appellant)
and
Pedro Estrada
Respondent (Respondent in Appeal)
Julia Estrada, acting in person
Mathew Fordjour, for the respondent
Heard and released orally: September 19, 2016
On appeal from the judgment of Justice Gordon D. Lemon of the Superior Court of Justice, dated January 5, 2015.
ENDORSEMENT
1The only issue in this appeal is whether the trial judge erred in refusing an adjournment of a trial that resulted in a final judgment in family law proceedings.
2Whether or not to grant an adjournment is a matter for judicial discretion. The scope for appellate review is limited to whether the discretion is exercised judicially on proper principles, after considering all relevant factors: Khimji v. Dhanani, 2004 CanLII 12037 (ON CA), [2004] 69 O.R. (3d) 790 (C.A.), at para. 20, per Laskin J.A. in dissent, but not on this point.
3We see no error in principle in the judge’s exercise of discretion in this case. The appellant’s motion for an adjournment before the trial was dismissed by Baltman J., who noted that the trial would proceed, subject to the discretion of the trial judge.
4On appeal, the appellant submits that she suffered prejudice from her inability to prepare when the trial judge refused her request for an adjournment at the outset of trial. It is clear that the trial judge turned his mind to this very issue when he asked whether the appellant was ready for trial. In his reasons for judgment, at para. 5, supported by the transcript, the trial judge confirmed with the appellant that she was prepared to proceed. Further, he found that, after the trial got under way, she was articulate and well-prepared.
5During her cross-examination by the respondent’s counsel, a second request for an adjournment was made. The conditions under which the request was made led the trial judge to reject the request. The trial judge referred, again at para. 5 of his reasons, to the appellant citing medical reasons for her adjournment request. Absent medical documentation, the trial judge did not accept that the appellant had an illness that prevented her from continuing the trial. The trial judge’s decision not to grant an adjournment is entitled to deference.
6We reach this decision having been referred to the fresh evidence of the appellant.
7The appeal is therefore dismissed.
8Costs of the appeal allowed to the respondent fixed in the amount of $3,000, all inclusive.
“K.M. Weiler J.A.”
“R.A. Blair J.A.”
“K. van Rensburg J.A.”