Pirner v. Pirner, 2011 ONSC 5560

CITATION: Pirner v. Pirner, 2011 ONSC 5560

DIVISIONAL COURT FILE NO.: DC-11-00000057-00ML COURT FILE NOS.: 93 ND 200963A and 06 FA 14053 DATE: 20110923

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

DIANE PIRNER Applicant (Moving Party)

• and -

THOMAS PIRNER Respondent (Responding Party)

John B. J. Legge, for the Applicant

K. William McKenzie, for the Respondent

HEARD: September 20, 2011

HOY J.

REASONS FOR DECISION

1Diane Pirner (the “mother”) seeks leave to appeal to Divisional Court the December 13, 2010 order of MacDonald J. that the bankruptcy file of her ex-husband, Thomas Pirner (the “father’), No. 31-347546, Estate No. 131-34754, be heard in bankruptcy court, and not consolidated with the outstanding family law claims in 06FA-14053 and the claim for an accounting from and after 1994 still extant in 01-CV-209878, as had been ordered by Backhouse J. on April 27, 2007.

2Pursuant to Rule 62.02(4) leave 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.

Background

3The mother and father separated in 1990, after six years of marriage. There have been innumerable court proceedings in the 21 years since. The parties have appeared before numerous judges at all levels of court, up to and including the Supreme Court of Canada. For this motion, counsel for the mother filed an overwhelming 13 volume record of endorsements, decisions, orders and selected transcripts, as well as supplemental motions records, a factum and book of authorities.

4The father made an assignment in bankruptcy in 1998. The equalization damages ordered by the court were outstanding at the time of his assignment. The mother alleges that the father had income and assets and that the filing was a sham, to insulate him from the obligation to pay the equalization damages. The mother’s challenge of the father’s bankruptcy will focus on the father’s financial position in 1998, and transactions prior thereto which she says were designed to falsify his true financial position at that time.

5In his reasons of December 1, 2000 on various support issues, O’Connell J. made highly damaging findings of fact in relation to the father, including that beginning in 1995 he diverted income to third parties. He imputed income of $175,000 to the father at the time of his bankruptcy. These findings were upheld on appeal.

6Backhouse J. made her April 27, 2007 consolidation order (the “Backhouse Order”) while family law case management judge. It was made following the hearing of an application by the father to vary child support. At the same time, Backhouse J. made findings on some of the substantive issues that were before her. Those findings were upheld on appeal.

7MacDonald J. appears to have had the matter first before her in November of 2009. A couple of motions were made to her, and she then began the trial. She ordered further productions by the father and adjourned the trial. On November 23, 2010, the trial resumed. The father began his testimony. On the stand, he produced documents not previously produced. MacDonald J. granted a short adjournment to the mother, to review the documents. When the trial resumed, the parties were still in disagreement on disclosure, the mother saying she still had not received all the disclosure she was entitled to, and the father, who represented himself, arguing that he had produced everything. MacDonald J. determined that a further adjournment was required to complete disclosure, and, because she could not be available to continue the trial, declared a mistrial. The father had renewed his request, previously advanced to Allen J. that the bankruptcy issue be severed. In her endorsement of December 13, 2010, Macdonald J. wrote:

[9] One of the many difficult aspects of this case is that Mr. Pirner has been in bankruptcy for approximately 12 years. He is undischarged and the bankruptcy is intertwined with the litigation in the matrimonial matter respecting the variation.

[10] I am ordering that the issue with respect to the bankruptcy proceed in bankruptcy court and no longer be a part of this application.

The Parties’ Positions and Analysis

8Mr. Legge, for the mother, submits that the Backhouse Order is a conflicting decision of another judge on the matter involved in the proposed appeal, and that it is desirable that leave be granted. He argues that Backhouse J. best understood the situation and that if the matters are not consolidated, the mother will have to prove her case twice.

9Mr. Legge further submits that there is good reason to doubt the correctness of MacDonald J.’s order. He says a trial judge should not have the ability to supplant a procedural, case management decision made in a family law context in the course of an application where substantive matters were determined which were sustained on appeal in the absence of a formal motion record, and without giving detailed reasons. The ability of a trial judge to do this is of such importance, he argues, that leave should be granted.

10Mr. McKenzie argues that this motion should not be heard because the mother did not file her notice of motion for leave to appeal on a timely basis and has not established that she had a firm intention to appeal. He notes that in the time that she should have appealed, she agreed to a new trial date of February 28, 2011.

11Mr. McKenzie for the father submits, and I accept, that the Backhouse Order is not a conflicting decision as contemplated by Rule 62.02(4)(a). To amount to a conflicting decision, there must be a difference in principle, not just a difference in outcome.

12Moreover, it is not in my view desirable that leave be granted. The parties had agreed to a new trial date of February 28, 2011. But for this motion, the trial on the issues (other than the bankruptcy issue, which may prove to be relatively straightforward) would have been heard by now. In his submissions, Mr. McKenzie acknowledges that there may be overlapping issues in relation to the period 1994- 1998 and says that the parties will be bound by the findings of fact made by whatever court decides the issue first.¹ If leave was granted, there would be further delays. The parties need a trial. Delay ‑ at this stage ‑ trumps the concern of overlap, particularly given the foregoing.

13As to the correctness of MacDonald J.’s order, there is not good reason to doubt the authority of MacDonald J. to make the order she did. Case management is fluid. More than three and one-half years had elapsed since Backhouse J. made her order. Generally, it is the trial judge who has the best sense of how the trial can be effectively managed. In any event, the matters involved on the proposed appeal are not of such importance that the appeal should be granted.

14In the result, the motion for leave to appeal is dismissed.

15I have dealt with this motion for leave to appeal “on the merits” and not on the alternative basis argued by Mr. McKenzie that it is not an appropriate case for the court to exercise its discretion to extend the time for filing a notice of appeal. The record indicates that the order at issue was not settled until February 18, 2011. On February 25, 2011, Aston J. established a timetable in respect of this motion. The wife did not comply with this timetable. On April 28, 2011, Low J. ordered that the mother was entitled to file a motion record and for leave to appeal despite being out of time under the order of Aston J. Mr. Legge argued that the effect of Low J.’s endorsement was to extend the time; Mr. McKenzie submitted that it is still a live issue. Given my finding “on the merits” I need not determine the issue.

Costs

16The father submits that he should be entitled to costs on a partial indemnity basis in the amount of $20,000, all inclusive. Mr. McKenzie did not act for the father on the trial and had to familiarize himself with the voluminous materials filed by Mr. Legge in order to respond to this motion. Mr. McKenzie argues that his costs were greater than would have been the case if the source of all factual assertions in Mr. Legge’s factum had been indicated and a compendium provided. Mr. McKenzie did not have his cost outline available at the conclusion of the hearing. He also indicated that there is a relevant settlement offer.

17Mr. Legge says that costs should be left to the trial judge, and that, if not, $5,000, all inclusive, is reasonable.

18While, having been faced with the same voluminous materials as Mr. McKenzie, I have some sympathy to his request, the amount he seeks is not in my view a fair and reasonable amount for the mother to pay in the circumstances. I do also note that the father was granted costs of $2,500 on the attendance before Low J. on April 28, 2011.

19Mr. McKenzie shall provide his costs outline and his brief submissions in relation to the settlement order within the next 5 days. Mr. Legge shall provide any brief submissions in relation thereto he wished to make within the 3 days following. The parties are not to repeat any oral arguments made on costs at the conclusion of the hearing. I will then fix costs.

Hoy J.

Footnotes

1. 1The father, who was seated at the rear of the courtroom, nodded his head in the affirmative at this.