CITATION: Varshavska v. Varshavskiy, 2011 ONSC 1396
DIVISIONAL COURT FILE NO.: 529/10
DATE: 20110405
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
ASTON, HAMBLY AND LEDERER JJ.
BETWEEN:
ROKSOLYANA VARSHAVSKA Applicant (Appellant)
– and –
YAROSLAV VARSHAVSKIY Respondent (Respondent)
In Person
John W. Bruggeman, for the Respondent Martha Heder, for the Office of the Children’s Lawyer
HEARD at Toronto: March 2, 2011
ASTON J. (orally)
[1] The flawed procedural process that brings this case before us prevents us from considering what Ms. Varshavska wants to say about her situation.
[2] She appeals the order of Czutrin J. dated September 30, 2010. Pending the hearing of that appeal, Mr. Varshavskiy obtained an order from Swinton J. on December 10, 2010 which requires the appellant to pay $6,000 as security for costs by January 31, 2011. On failing to make that payment, her appeal is stayed according to the terms of the order. The payment was not made, so the appeal is now stayed and will remain so unless and until the order of Swinton J. is set aside or varied.
[3] There are two ways that the appellant can challenge Swinton J.’s order. The first is that the order could be appealed to the Court of Appeal, with leave of that court, under s.6(1)(a) of the Courts of Justice Act. Alternatively, it could be challenged by a motion under s.21(5) of the Courts of Justice Act, requesting a panel of the Divisional Court to set aside or vary a decision of a judge made on a motion when sitting as a single judge of the Divisional Court. No attempt has been made to appeal Swinton J.’s order to the Court of Appeal, leaving only the possibility of a motion under s.21(5) of the Courts of Justice Act.
[4] Pursuant to Rule 61.16(6), a motion under that section of the Courts of Justice Act is to be served on the other side within four days after the order was made – in this case by December 15, 2010.
[5] Ms. Varshavska says that the order of December 10, 2010 only came to her attention on December 23. Even if the Rule gives her four days from that date, and on the face of it, it doesn’t, that would only give her until December 28, 2010 to serve her motion, so she is still out of time.
[6] This Court could now extend the time for her s.21(5) motion but there is a well established test for such an indulgence. There are four considerations. First, an intention to appeal within the time for appeal. Second, a reasonable explanation for the delay having regard to the length of the delay. Third, whether there is prejudice to the respondent, and Fourth, the apparent merit of the appeal, or in this case a reconsideration under s.21(5) which is akin to an appeal. Even if we assume without any actual evidence that Ms. Varshavska intended to appeal within the time for appeal and that the length of the delay is not unreasonable, it is clear to us that the other two parts of the test have not been met.
[7] A review of the motion material before Swinton J. and a consideration of her endorsement of December 10, 2010 reveal no real prospect that the panel would set aside or vary her discretionary order.
[8] Furthermore, there is substantial prejudice to the respondent who is spending a considerable sum defending a long series of unsuccessful motions and applications, a series which can fairly be characterized as an abuse of process by Ms. Varshavska.
[9] Therefore, we would not grant and extension of the time for the motion to set aside or vary the order of Swinton J.
[10] Our refusal to exercise our discretion in this regard is also a reflection of the fact that the appeal itself has no obvious merit. If the order of Czutrin J. is a final order, though we suspect it is not, the appeal from that order (which addresses custody and access and not just financial issues) would have to go to the Court of Appeal under s.6 of the Courts of Justice Act. This Court would have no jurisdiction to hear it under s.19 of that Act. If, on the other hand, the order of Czutrin J. is interlocutory, Ms. Varshavska needs to obtain leave to appeal under Rule 62.02. Not only is the appellant long past the time for a motion for leave to appeal, it seems highly unlikely that leave would be granted given the very limited grounds upon which leave may be granted under Rule 62.02(4).
[11] In short, this Court almost certainly has no jurisdiction to hear the appeal of the order of Czutrin J., and certainly not before leave is granted, quite apart from the fact that there does not seem to be any real prospect that the appeal would succeed on the merits.
[12] The motion is dismissed. The stay of the appeal is continued.
[13] We will decline to offer any advice to you Ms. Varshavska on how you might proceed from here. However, we do encourage you to seek the assistance of a lawyer, even if only on procedural issues, before taking any fresh steps.
[COSTS SUBMISSIONS]
[14] We have endorsed the Appeal Book, “This appeal is not heard. It is stayed by the order of Swinton J. of December 10, 2010 and the stay continues for the oral reasons given today. Costs of the appeal are included in the disposition of the motion. See the endorsement on the Motion Record”. On the Motion Record we have endorsed that “The motion is dismissed for oral reasons given. The plaintiff, moving party is to pay costs fixed at $2,945.00, inclusive of HST and disbursements and inclusive of any time on the appeal itself.”
ASTON J.
HAMBLY J.
LEDERER J.
Date of Reasons for Judgment: March 2, 2011
Date of Release: April 6, 2011
CITATION: Varshavska v. Varshavskiy, 2011 ONSC 1396
DIVISIONAL COURT FILE NO.: 529/10
DATE: 20110405
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
ASTON, HAMBLY AND LEDERER JJ.
BETWEEN:
ROKSOLYANA VARSHAVSKA Applicant
– and –
YAROSLAV VARSHAVSKY Respondent
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: March 2, 2011
Date of Release: April 6, 2011