Court File and Parties

COURT FILE NO.: 402/07 98-FA-7489 DATE: 20080214

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PITT, J.

B E T W E E N:

A Applicant/Respondent in Appeal

• and -

B Respondent/Appellant in Appeal

Philip Epstein, for the Applicant/ Respondent in Appeal Harold Niman, for the Respondent/ Appellant in Appeal

HEARD: February 7, 2008

Reasons for Decision

Pitt, J.

1This is a motion for an order granting leave to appeal to the Divisional Court from the portion of the Order of the Honourable Justice Croll, dated July 27, 2007, made at Toronto, Ontario which dismissed “B’s” motion for an order that “A” be compelled to attend for questioning in Ontario.

2The grounds for the motion are:

“1. There is good reason to doubt the correctness of the Order of the Learned Motion Judge from which Order leave to appeal is sought;

2. The proposed appeal involves matters of such importance that leave to appeal should be granted;

3. There are conflicting decisions on the matter involved in the proposed appeal and it is desirable that leave to appeal be granted;

4. The Learned Motions Judge erred in finding that

(a) in Rule 20(14) of the Family Law Rules, place cannot logically mean a “place” within Ontario;

(b) a Court in Ontario cannot order a person outside of Ontario to attend in Ontario to be questioned, in a family law matter.

5. “B” relies on the provisions of Rules 3.02; 34.07 and 62.02 of the Rules of Civil Procedure and Rules 2(2); 2(3); 2(4) and 20 of the Family Law Rules.”

3The reasons given by Croll, J. for her decision is set out in the following paragraphs of her endorsement:

“[6] B submits that A should be ordered to attend in Ontario for questioning. A submits that there is no jurisdiction under the Family Law Rules, O. Reg. 114/99 to require a party who is outside of Ontario to attend for questioning in Ontario. A relies on Lalande v. Lalande, [2006] O.J. No. 5069 (S.C.J.). In that ruling, Riopelle J. states at paragraphs 5 and 16:

In my view r. 20(14) adequately covers the practice that must prevail if a person who lives outside Ontario will not come to Ontario for questioning. In that case the court is granted certain specified jurisdiction, including the rights to decide the place for questioning. Because it is a precondition to the exercise of that jurisdiction that the non-resident person will not come to Ontario the reference to “place” [in r.20(14)(a)] refers to a place other than Ontario.

…[Rule] 20(14) adequately covers the issue of whether a court may compel the attendance in Ontario for questioning of a person who lives outside Ontario and will not come to Ontario for questioning: the court is not granted that jurisdiction.

7B refers me to the decision of Backhouse J. in Belittchenko v. Belittchenko, [2007] O.J. No. 2183 (S.C.J.) wherein she stated that she did not agree that Rule 20(14) limits the court’s discretion to order a non-resident to come to Ontario for questioning. In that case, however, a companion civil action existed and the order that the Belittchenko parents attend in Ontario for questioning was grounded in Rule 34.07 of the Rules of Civil Procedure.

8In this case, there is no gap in the Family Law Rules, nor is there a companion civil action, such that the Rules of Civil Procedure can be utilized to compel attendance in Ontario. I agree with the analysis of Riopelle J. in Lalande that the reference in Rule 20(14) to “place” cannot logically mean a place within Ontario. Accordingly, while under Rule 20(14) the court in Ontario can determine how a party outside of Ontario is to be questioned, it cannot order a person outside of Ontario to attend in Ontario to be questioned.”

Analysis

4Since I can find no basis to doubt the correctness of the order grounded in the moving party’s assertion of (1) the inherent unfairness of Croll J.’s interpretation of rule 20(14) and (2) Croll J.’s erroneous approach to statutory interpretation, I shall proceed to deal with what I consider the real issue: whether the decision of Backhouse J. in Belittchenko v. Belittchenko [2007] O.J. No. 2183 is a decision that conflicts with Lalande v. Lalande [2006] O.J. No. 5069.

5In Belittchenko the wife sought, among other things, an order granting leave to question the husband’s parents in Toronto and an order consolidating the matrimonial action with a civil action in which the husband’s parents were plaintiffs to enforce a mortgage and obtain an order vesting the property either in one or in both of them.

6During the course of her reasons, Backhouse J. said as follows:

“21 The Belittchenko parents are Canadian citizens. Their lawyer on record in the two actions practices in Toronto. They have already been questioned in Ontario. The Order of Justice Bolan that Anatoliy re-attend for questioning is as a result of his failure to answer proper questions put to him from an examination in Toronto.

22 The Belittchenko parents have asserted a counter-application in this action and are plaintiffs in a civil action seeking to vest in them the Ontario property the wife claims is the matrimonial home and enforce a mortgage which the wife claims is invalid. The asset that is the subject of the claims in both this and the civil action is located in this jurisdiction.

23 The Belittchenko parents say nothing about not being able to attend a trial in Ontario. It was not explained how they could proceed with their lawsuit without attending to testify at trial. There would be unfairness to the wife in their having the right to examine her in person, their being examined at their request by videoconferencing and interrogatories and then for them to attend to give their evidence in person at the trial.

24. I do not agree that Rule 20(14) of the Family Law Rules limits the court’s discretion to order a non-resident to come to Ontario for questioning. In any event, Rule 34.07 of the Rules of Civil Procedure applies to the civil action and clearly grants the court the right to determine whether the examination is to take place in or outside Ontario.

25. The Belittchenko parents shall attend in Toronto at their own expense for questioning at a date and time to be agreed upon by counsel and failing agreement, to be set by me after a teleconference.”

7In Martin v. Rayner, 2003 Carswell Ont. 8571 (Div.Ct.), S.E. Lang, J. said at paragraph 12:

“12 The additional observation in O’Neil was unnecessary for the court’s decision in that case. The court makes no reference to the above authorities with respect to concurrent tortfeasors and instead bases its decision on the peculiar facts of the particular plaintiff’s position. As the additional observation in O’Neil was clearly obiter and it clearly was not intended to mark a significant change in earlier jurisprudence, I do not see it, for the purposes of this motion, as a case that conflicts with Alderson and the other entrenched authorities.”

8Significantly although Lalande v. Lalande (supra) was the only reported case on that issue prior to Belittchenko, Backhouse, J. did not specifically refer to Lalande in her reasons, and therefore did not need to distinguish it.

9The cases are consistent in finding that observations that are obiter or are mere expressions of doubt by a judge of co-ordinate jurisdiction to that of the deciding judge on a point of law not before the court, ought not to be regarded as representing a conflicting decision.

10When Backhouse, J. ordered Belittchenko’s wife’s parents to attend for questioning in Toronto, Backhouse, J. did not need to rely on rule 20.14 of the Family Law Rules for jurisdiction, as section 34.07 of the Rules of Civil Procedure, on which she did rely, was available to her.

11The Belittchenko case is therefore not a conflicting decision.

12Apart from Bellitchenko, there is nothing in the case law that suggests a difference of opinion among counsel about the interpretation of Rule 20(14) of the Family Law Rules, which have been in place for some considerable period of time.

12The motion is dismissed.

Pitt, J.

Released: February 14, 2008

COURT FILE NO.: 402/07

98-FA-7489