CITATION: Tadla v. Soares, 2010 ONSC 4515
DIVISIONAL COURT FILE NO.: DC-10-0213ML Hamilton
DATE: 2010-08-16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mr Justice Ramsay
BETWEEN:
Aldona Tadla Moving party
– and –
Paulo Soares Responding party
Ann Bruce for the moving party
Richard Skibinski for the responding party
HEARD: 2010-08-16
[1] The applicant wife in matrimonial proceedings moves for leave to appeal to the Divisional Court from the interlocutory order of Arrell J. of May 10, 2010, in which he granted the respondent husband’s motion for an adjournment of the trial from the May 2010 sittings.
[2] The litigation involves custody and support of two children.
[3] On December 11, 2009, Steinberg J. made a temporary order giving access to the father and ordering on consent that the Children’s Lawyer be requested to investigate. On January 13, 2010, Steinberg J. made a temporary order giving custody to the father and access to the mother. On April 12, 2010 the Children’s Lawyer wrote to counsel for both parties to say that Lesley Barker-Thomas had been assigned to the matter. The record does not show when the trial date was set, but at some point a trial was set for the May 2010 sittings. On May 4, 2010, Catherine Bellinger, counsel in the office of the Children’s Lawyer, wrote to both counsel to say that the matter had been assigned to her, and that she would be assisted by Lesley Barker-Thomas, who is a clinical investigator. She said that she would not be in a position to participate by the May sittings, and that if the trial were adjourned to September 2010, her office could carry out the usual steps of involvement and properly represent the children.
[4] Counsel for the father brought the motion before Arrell J. on the basis of Ms Bellinger’s letter.
[5] Arrell J., in a written endorsement, adjourned the trial. He said, “The applicant opposes the request stating that a report of OCL is not needed. I disagree and feel it will be of fundamental importance in this trial.” In the circumstances, there is no reason to doubt the correctness of his decision.
[6] The matter was spoken to last week, and Lofchik J. set the matter for trial on the November 1, 2010 sittings and directed that it be given priority. The Divisional Court’s next Hamilton session is scheduled for the week of November 15, 2010.
[7] The moving party says that Arrell J.’s order was unjust, in that it gives the father the tactical advantage of delay. It is not apparent to me how the delay helps or hurts either party in the circumstances of this case. Moreover, I cannot see what the Divisional Court could do about it at this point.
[8] The moving party also argues that Arrell J. in effect mandated the involvement of the Children’s Lawyer as a condition precedent to a trial. He did no such thing. Steinberg J. invited the participation of the Children’s Lawyer in December 2009. By May 10, 2010, the Children’s Lawyer had assigned a clinical investigator and a lawyer. They had not decided whether to participate by way of clinical investigation, legal representation for the children, or both. Arrell J. simply decided to give them a few more months to decide how to participate, and to take the required steps. Counsel for the moving party made extensive submissions before me to the effect that Arrell J. misapprehended the evidence by referring to a “report”, when no report under s.112 of the Courts of Justice Act had been ordered. The letter from Ms Bellingham, however, makes it clear that the Children’s Lawyer was considering all options available to it, which would include such a report. There was no misapprehension of the evidence.
[9] Finally, the motion for leave to appeal was filed on June 3, 2010, some 22 days after the impugned decision. The rules require such motion to be filed within seven days, unless the judge hearing the motion orders otherwise. The broad wording of the rule suggests that I have a correspondingly broad discretion in extending the time, but no good reason has been suggested to me for so doing. The only reason argued is the manifest injustice of the decision. The impugned decision is not unjust.
[10] I see no reason to doubt the correctness of Arrell J.’s decision. Furthermore, the proposed appeal has no public importance. It does not even have any importance to the parties. Leave to appeal is denied.
[11] The parties may make written submissions to costs not exceeding three pages in length, to which a bill of costs may be appended. The responding party’s submissions shall be filed by August 24 at 4 pm. The moving party’s shall be filed by August 31 at 4 pm.
J.A. Ramsay J.
Released: 2010-08-17
Tadla v. Soares, 2010 ONSC 4515
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mr Justice Ramsay
BETWEEN:
Aldona Tadla Moving party
– and –
Paulo Soares Responding party
REASONS FOR JUDGMENT
Released: 2010-08-17