COURT OF APPEAL FOR ONTARIO
Nordheimer, Gomery and Dawe JJ.A.
BETWEEN
Michael David Whaling
Applicant (Appellant/Responding Party)
and
Marnie Brooke Cossarini
Respondent (Respondent/Moving Party)
Michael David Whaling, acting in person
Sarah Strathopolous, for the moving party
Heard: February 28, 2025
On appeal from the order of Justice Amelia M. Daurio of the Superior Court of Justice, dated August 1, 2024, with reasons reported at 2024 ONSC 4288.
REASONS FOR DECISION
1The respondent brought a motion to quash this appeal on the basis that this court lacks the jurisdiction to hear it. In response, the appellant acknowledged his error and asked for an order to transfer the appeal to the Divisional Court. After hearing the parties’ oral submissions, we granted the respondent’s motion to quash the appeal but declined to order a transfer to the Divisional Court, with reasons to follow. These are our reasons.
Background
2The parties were married in 2012 and separated in 2017. They have one child, now 11 years old, who lives with the respondent pursuant to an order by Justice Sutherland following a contested eight day trial in 2019. The appellant has parenting time conditional on certain terms, including conduct provisions. He is also required to pay child support, two thirds of s. 7 expenses, and spousal support, pursuant to consent orders issued in 2018 and 2021.
3The appellant was also ordered to pay almost $160,000 in costs of the 2019 trial. He declared bankruptcy about one month after the order was released. The parties have since continued to litigate despite extensive case management.
4In February 2024, the appellant brought a motion to change the parenting and support orders. The respondent sought an order to strike this motion and for other relief under rule 1(8) of the Family Law Rules, O. Reg. 114/99.
5The motion judge granted the respondent’s motion to quash. She found that the appellant had blatantly disregarded court orders in both the family law proceedings and the bankruptcy proceedings, and that he owed the respondent over $150,000 in costs and approximately $90,000 in support arrears. She described the appellant as “ungovernable if he does not agree with the outcome” of a proceeding, and that he had demonstrated a lack of good faith. She found that the appellant had earned income at a level that would have allowed him to pay the support ordered and had presented no proof that his employment had been terminated, even though this was ostensibly the basis for his motion to change. Despite this, he had made no effort to pay any ongoing support for his child or the respondent for at least a year.
6The motion judge concluded that striking the appellant’s motion to change was the only appropriate measure. She further ordered that he must obtain leave from the case management judge to bring any further motions to change and that he must take steps to comply with existing orders before doing so.
7The appellant filed his notice of appeal to this court within 30 days of receipt of the motion judge’s decision. After being served with the notice, the respondent’s counsel sent the appellant a letter on August 30, 2024, telling him that he had filed in the wrong court. When the respondent brought this motion to quash on December 3, 2024, the appellant maintained that this court had jurisdiction over the appeal. He reconsidered his position only after receiving a letter from the office of the court’s Executive Legal Officer advising him that, on its face, his appeal was governed by s. 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and thus should have been brought in the Divisional Court.
Analysis
8This court has no jurisdiction to hear this appeal. It is an appeal of a final order of a judge of the Family Court made only pursuant to provincial legislation and, as such, must be made to the Divisional Court pursuant to s. 19(1)(a.1) of the Courts of Justice Act.
9Where a proceeding is taken before the wrong court, it may be transferred to the proper court: s. 110(1) of the Courts of Justice Act. The decision to transfer is discretionary: Bernard v. Fuhgeh, 2020 ONCA 529, 61 C.P.C. (8th) 231, at para. 15. In deciding whether a transfer is in the interests of justice, the court considers three factors: (1) the merits of the proposed appeal; (2) prejudice that the respondent may suffer as a result of further delay while the appeal is waiting to be heard; and (3) whether the appellant acted promptly after becoming aware that jurisdiction was in dispute.
10The first two factors do not favour a transfer.
11First, the appeal has questionable merit. The motion judge’s alleged errors concern her assessment of the evidence before her, including her findings on credibility, and her exercise of discretion in determining an appropriate order and fixing costs. The appellant will have to show that she made a palpable and overriding error. No obvious error has been raised in his notice of appeal.
12Second, the respondent will suffer prejudice as a result of further delay. Very significant arrears of support, costs and interest remain unpaid and continue to accrue. This prejudices not only the respondent but also the parties’ child. The respondent will have to incur further legal costs to respond to the appeal if it is transferred. It is true that the appellant may seek an extension of time to file an appeal to the Divisional Court even if this court denies his transfer request. An extension will not be granted automatically, however.
13The third factor weighs neither for nor against a transfer. The appellant is self-represented. In his affidavit in response to the motion to quash, the appellant states that he sought reassurance from the court office on the jurisdictional issue when he received the letter from respondent’s counsel. This evidence is uncontradicted. Although he might have sought further legal advice after receiving the respondent’s motion to quash, we give him the benefit of the doubt on this issue.
14We nonetheless declined to order a transfer. Although this is not a case where the appeal clearly has no merit, having weighed the factors, in particular the ongoing prejudice to the respondent, we concluded that the interests of justice do not favour an exercise of our discretion in the appellant’s favour.
15The respondent is entitled to her costs on her motion to quash, which we fix in the amount of $5,000, inclusive of disbursements and HST.
“I.V.B. Nordheimer J.A.”
“S. Gomery J.A.”
“J. Dawe J.A.”