CITATION: Rosen v. Sloven, 2011 ONSC 2670
DIVISIONAL COURT FILE NO.: 424/10
DATE: 20110428
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON AND LEDERER JJ.
BETWEEN:
STANLEY GERALD ROSEN
Applicant
(Appellant)
– and –
TAMMY LOUISE SLOVEN
Respondent
(Respondent in Appeal)
Michael J. Polisuk, for the Appellant
Mark Greenstein, for the Respondent
HEARD at Toronto: April 28, 2011
SWINTON J. (orally)
[1] This is an appeal from the order of Paisley J. dated August 12, 2010, in which he ordered that the appellant husband’s pleadings may be reinstated so that he may participate in the trial if, within ten days, he fully complied with the disclosure order of Spies J. dated April 13, 2010, and paid interim disbursements of $35,000.00 plus HST, plus costs of $3,000.00 for the motion heard that day. Otherwise, the motion to set aside the order of Spies J. dated May 3, 2010, striking the appellant’s pleadings, was dismissed.
[2] Although the motions judge was not satisfied that there had been good faith compliance with the order of Spies J., there had been some attempted compliance, albeit late.
[3] The motions judge gave no reason for the award of $35,000.00 plus HST as interim disbursements. In oral argument, counsel for the respondent wife stated that the figure was an estimate he had provided in answer to a question as to the likely cost of trial preparation and fees for the four to five day trial that had been scheduled.
[4] The order to pay the interim disbursements was an error in principle. There was no apparent consideration given to the appellant’s ability to pay and no notice to him that this was an issue to which he would have to respond. The motions judge did not give any reasons for the award nor its quantum, which makes appellate review impossible.
[5] The motions judge had a very wide discretion to grant the husband relief on whatever conditions seemed reasonable, but he had an obligation to explain why he did what he did.
[6] We would therefore allow the appeal in part and set aside that part of the order requiring the payment of $35,000.00 plus HST. We do so without prejudice to the respondent’s ability to bring an appropriate motion if so advised.
[7] We would not interfere with that aspect of the order requiring full compliance with the order of Spies J., both with respect to disclosure and costs, as well as the order of costs of $3,000.00 made by the motions judge.
[8] The ten days for compliance with the order of the motions judge will begin to run from April 29, 2011.
ASTON J.
[9] This appeal is allowed in part pursuant to the oral reasons delivered by Swinton J. on behalf of the panel. The appellant shall pay costs of this appeal fixed at $1,000.00 plus disbursements plus HST and payment of these costs within ten days shall also be a term or condition of his ability to participate in the proceeding.
SWINTON J.
ASTON J.
LEDERER J.
Date of Reasons for Judgment: April 28, 2011
Date of Release: May 18, 2011
CITATION: Rosen v. Sloven, 2011 ONSC 2670
DIVISIONAL COURT FILE NO.: 424/10
DATE: 20110428
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON AND LEDERER JJ.
BETWEEN:
STANLEY GERALD ROSEN
Applicant
(Appellant)
– and –
TAMMY LOUISE SLOVEN
Respondent
(Respondent in Appeal)
OARL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: April 28, 2011
Date of Release: May 18, 2011