Gallant v. Gallant, 2009 CanLII 67416 (ON SCDC)

COURT FILE NO.: DC-09-0078-ML

DATE: 20091203

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DEREK JOHN GALLANT

v.

LISA ANNE GALLANT

BEFORE: DALEY J.

COUNSEL: R. SLEIGHTHOLM, for the APPLICANT

J. BIRCHALL, for the RESPONDENT

E N D O R S E M E N T

1The applicant moves for leave to appeal from the order of Sproat J. of October 6, 2009, and for an order staying the spousal support award.

2The applicant argues that leave should be granted under Rule 62.02 (4) (a) and (b), of the Rules of Civil Procedure which provides:

Grounds on Which Leave May Be Granted

(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. R.R.O. 1990, Reg. 194, r. 62.02 (4).

3The order in question calls for the payment of increased interim spousal and child support. It is only with respect to the order relating to spousal support that the applicant seeks leave to appeal.

4There had been two prior orders directing the payment of spousal and child support, namely the order of Clarke J. at October 17, 2005, and Quigley J. at June 23, 2006. These orders were based on the parties’ financial disclosure, and in particular their earnings history available to the court at that time.

5Both parties filed supplementary motion records on this motion for leave to appeal. As these motion records contained affidavit material that was not before the motion judge, I declined to consider that material.

6Having considered the submissions of counsel and the record before the motion judge, I conclude that the test for the granting of leave to appeal has not been made out.

7Counsel the applicant submits that the motion judge made several errors which form the foundation for the granting of leave to appeal under both branches of Rule 62.02 (4).

8The supposed errors include:

(a) the motion judge's refusal to grant an adjournment to allow for the filing of further evidenced by the applicant;

(b) considering the respondent’s affidavit material and financial statement, which were served and filed prior to the motion but outside the time provided for in the Rules;

(c) failing to consider the means of the applicant, and the needs of the respondent in assessing the respondent’s entitlement to spousal support;

(d) failing to consider what was asserted were errors in the respondent’s financial statement; and

(e) awarding retrospective spousal support.

9I have concluded that the applicant has failed to meet the test for the granting of leave to appeal on several bases.

10As was acknowledged by counsel for the applicant, it was entirely within the discretion of the motion judge as to whether an adjournment would be granted to allow the applicant file further material. In his reasons, the motion judge took into account a statement made by the applicant which he characterized as "at best disingenuous……. and at worst perjury" in declining his request for an adjournment. In my view, the refusal of the motion judge to grant an adjournment cannot form any basis for the granting of leave to appeal.

11Similarly, the motion judge was entitled consider the reliable evidentiary record before him, including the affidavits and financial statement filed by the respondent, in spite of the fact that, in particular, the respondent’s financial statement had not been served and filed within the prescribed time.

12As to the other supposed errors as referenced, in my view, these do not form the foundation for the granting of leave to appeal.

13Firstly, the granting of interim support orders is often done within the context of an incomplete and sometimes inaccurate evidentiary record for the purpose of providing fair and reasonable interim support, pending an adjudication at trial on a full and tested evidentiary record: Brown v. Brown [1999] , 1999 15074 (ON SC), 45 O.R. (3d) 308. In setting the amount of spousal support to be paid, the motion judge used the applicant’s own evidence, as to his 2008 income, as set out in his notice of assessment.

14In the course of determining what is fair and reasonable, in the way of an interim support order, it is not always appropriate to approach the issue on the basis of the established need and ability to pay: Lakhani v Lakhani , 2003 2161 (ON SC), [2003] O.J. No. 4041; Cradduck v. Cradduck (2000) , 2000 22433 (ON SC), 11 R.F.L. (5th) 54.

15Further, the granting of retroactive, or retrospective spousal support is open to a motion judge on the appropriate record: Lakhani , supra. at para. 16.

16As to the test in Rule 62.02 (4) (a), I am neither satisfied that there is a conflicting decision by another judge or court in Ontario, nor that it is desirable that leave to appeal be granted.

17I am further of the view that there is no reason to doubt the correctness of the decision in question, nor does the appeal proposed involve matters of such importance that leave should be granted, as there is nothing at stake in this matter which goes beyond the immediate interest these parties. Interim support orders are temporary by their nature, and as such, it would be most difficult to establish that any order relating to interim support would satisfy the test of "importance" called for in Rule 62.02 (4) (b): Jessome v. Jessome, [1998] O.J. No. 5565.

18Further, even if leave to appeal were granted, an appeal would be subject to the stricture as set out by Zuber J.A. in Sypher v. Sypher 1986 6337 (ON CA), 2 R.F.L. (3rd) 413:

…an appellate court should not interfere with an interim order unless it is demonstrated that the interim order is clearly wrong and exceeds the wide ambit of reasonable solutions that are available on a summary interim proceeding.

I am further view that on this basis as well, I am not persuaded that leave to appeal should be granted: Selznick v. Seznick, 2003 2350.

19In the result, the application for leave to appeal is dismissed.

20Counsel for the respondent shall deliver submissions with respect costs within 15 days, followed by submissions on behalf of the applicant within 15 days thereafter. The submissions shall be limited to two pages, plus a costs outline.