Citation: Marshall v. Marshall, 2015 ONSC 2258

DIVISIONAL COURT FILE NO.: 507/14

DATE: 2015-04-09

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Debra Gervasio Marshall, Applicant

AND:

Brian Marshall, Respondent

BEFORE: Harvison Young J.

COUNSEL: David Acri, for the Applicant

Gary S. Joseph and Ryan M. Kniznik, for the Respondent

HEARD at Toronto: Monday April 7, 2015 (in writing)

ENDORSEMENT

[1] The motion for leave to appeal is dismissed.

[2] The heart of the moving party husband’s motion for leave is his submission that Paisley J. did not have jurisdiction pursuant to the Divorce Act (or the Family Law Act) to grant interim relief in the course of an application to vary.

[3] Having reviewed the case law, I agree that there are cases going both ways. I do not find, however, that the test in Rule 62.02(4)(a) has been made out. First, even the cases cited by the moving party in support of the proposition that the court does not have jurisdiction to grant interim relief on a variation application recognize that there are a number of factors that may justify a court taking such jurisdiction: see Clark v. Vanderhoeven, 2011 ONSC 2286 (Ont. S.C.J.) at paras. 50-67, Smith v. Nicholson, 2014 5476 (Ont. S.C.). Accordingly, I am not satisfied that there are conflicting cases in the sense of being conflicting principles applied as opposed to different circumstances leading to different results: Comtrade Petroleum Incorporated v. 490300 Ontario Ltd., 1992 7405 (ON SC), 1992 CarswellOnt 429 (Div.Ct.).

[4] Second, and in any event, this is not a case in which it is desirable that leave to appeal be granted. The motions judge appears to have accepted evidence that the respondent wife and children are in need and that there has been a material change in circumstances. The wife also seeks payment of arrears and also imputation of income on the basis that, she asserts, the husband’s income is significantly higher than he had acknowledges. The motions judge was of the view that he was not able to quantify the arrears on the basis of the material before him. He also ordered significant disclosure from the husband. The interim support order was based on the income already disclosed by the husband.

[5] The motions judge has remained seized of the matter. It makes little sense for this matter to be disrupted by an appeal before it has been fully heard on all the issues. The moving party husband will have a full right of appeal on all the issues at that point.

[6] With respect to Rule 62.02(4)(b), I do not find reason to doubt the correctness of his decision to grant interim relief such that leave to appeal should be granted. While the motions judge might have articulated the basis for making an interim order given the case law cited above, he appears to have accepted evidence could have satisfied the criteria set out in Clark and Smith. Once there is a final decision, the parties will have full rights of appeal. The case does not involve matters of such importance that leave should be granted at this stage.

[7] The application is therefore dismissed. If the parties cannot agree as to the costs of this motion, they may make brief submissions in writing to my attention through the Divisional Court Office.

Harvison Young J.

Date: April 9, 2015