Barker v. Walsh, 2012 ONSC 5578

Barker v. Walsh, 2012 ONSC 5578

CITATION: Barker v. Walsh, 2012 ONSC 5578

DIVISIONAL COURT FILE NO.: 245/12

DATE: 20121001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

THERESA BARKER, ESTATE TRUSTEE FOR THE ESTATE OF WALTER BARKER

Appellant/Plaintiff

– and –

DYMPNA WALSH

Respondent/Defendant

Domenic Saverino, for the Appellant/ Plaintiff

Michael N. Freeman, for the Respondent/ Defendant

HEARD at Toronto: October 1, 2012

KITELEY J. (orally)

Background

1Ms. Barker commenced this action as estate trustee for the estate of her father. She seeks relief against her father’s former common law spouse. Following a motion in February, Justice McEwen¹ granted the defendant’s motion for summary judgment. A notice of appeal was served and filed. The appeal will be heard on October 19^th.

2In June, 2012, Mr. Freeman served a motion for security for costs in which he asked for costs in the amount of $25,000.

3On September 24, 2012, Pardu J. granted the motion and ordered Ms. Barker to make a payment of $10,000 by 4:30 today, October 1, 2012.

4On Friday September 28, Mr. Saverino served a motion returnable today for a stay of execution of that order. He has also served a notice of motion seeking leave to appeal the order of Pardu J. The motion for leave to appeal is not before me. The motion for a stay is opposed.

5Ms. Barker is hearing impaired. Her father was and Ms. Walsh is hearing impaired. Mr. Barker and Ms. Walsh communicated using ASL.

6In the affidavit of Ms. Barker sworn September 18, 2012, in opposition to the motion for security for costs, Ms. Barker said that the appeal was not frivolous and vexatious, that there were a number of legal issues on which the appeal is based, that the estate does not have any assets other than the claim against Ms. Walsh and that she personally does not have any significant assets. She provided the details of her employment and her expenses. Attached as Exhibit “A” to her affidavit was a copy of what she described as evidence in support of the position that she will pursue in the appeal, namely that ASL is an oral language and, since the alleged agreement between her father and Ms. Walsh on which she relies is based on ASL, then s. 55 of the Family Law Act ought not to apply and the judgment ought to be set aside. Mr. Saverino indicates that he plans to bring a motion for leave to file fresh evidence in the appeal dealing with this issue.

7In his written reasons for decision, McEwen J. dealt with this very issue. One of the four submissions before him was that Mr. Barker and Ms. Walsh could not have entered into an agreement in writing given their disability. At paragraph 26, McEwen J. noted that that defence had been abandoned which he noted was wise, given that Ms. Walsh adduced evidence that ASL can be translated into writing and the fact was that Mr. Barker and Ms. Walsh had entered into four written agreements in 2006 and 2007. He noted that the assertion that they could not have entered into an agreement in writing had no merit from the outset.

8As indicated above in her affidavit sworn September 18, Ms. Barker has attached what she describes as evidence in support of the position that Mr. Barker and Ms. Walsh could not have entered into an agreement in writing given their disability. In paragraph 12 of that affidavit, she said that “as a result of a miscommunication between (her) and (her) lawyer’s office, there was a significant misunderstanding as to this issue which (she) will seek to be addressed at the appeal.”

9In her endorsement on September 24, Pardu J. indicated that “this appeal is almost certain to fail as s. 55 of the FLA requires such agreements to be in writing.” She went on to comment about the lack of evidence as to impecuniousity.

10Mr. Freeman offered to provide to me the evidence on this issue that was before McEwen J. Mr. Saverino objected. I am left with the reasons for decision of McEwen J. and the affidavit of Ms. Barker and Exhibit “A”. In support of the motion for a stay, I have the affidavit of Mr. Saverino’s assistant that does not address that issue.

Analysis

11Mr. Saverino argues that whether hearing impaired persons are subject to s. 55 is a serious issue to be tried.

12The issue before me is whether I grant a stay of the order that requires compliance today. In order to pursue the appeal of the order of Justice Pardu, the applicant requires leave to appeal.

13In order to grant a stay, I must first be satisfied that there is a serious issue to be tried. The serious issue relates not to whether the appeal from the decision of McEwen J. will be granted. The serious issue relates to whether leave to appeal will be granted from the order of Pardu J. To the extent that the outcome of the leave to appeal application is related to the appeal itself, the language issue is engaged. However, my focus is whether there is a serious issue to be tried in the context of the application for leave to appeal the order of Pardu J.

14Justice Pardu had Exhibit “A” before her as well as the reasons of McEwen J. Justice Pardu did not say that the appeal was frivolous or vexatious which is the language of the rule. She did say that the appeal was almost certain to fail. I accept the definition of frivolous appeals and vexatious appeals in Pickard v. London Police Services Board.² A frivolous appeal is one readily recognizable as devoid of merit, as one having little prospect of success. That was Pardu J.’s conclusion. Justice Pardu also made observations about the evidence of impecuniosity. I am not persuaded that her findings on that issue constitute a serious issue to be tried.

Disposition

15The applicant has failed to meet the threshold necessary to obtain a stay. Motion for stay is dismissed.

16For oral reasons given, motion for stay of the order of Pardu J. pending the motion for leave to appeal is dismissed. Although counsel spent all day here because the matter was served on September 28, 2012 and was added to my list, given the importance but lack of complexity, I fix costs on a partial indemnity basis of $1,500.00, payable by the plaintiff to the defendant.

Footnotes

1. 1Barker v. Walsh 2012 ONSC 1694
2. 22010 ONCA 643, 268 O.A.C. 153