Garlick v. Garlick, 2015 ONSC 3022

Court File and Parties

CITATION: Garlick v. Garlick, 2015 ONSC 3022

DIVISIONAL COURT FILE NO.: FS-14-81828

DATE: 20150515

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JUSTICE F. DAWSON

BETWEEN:

VANNAK GARLICK

Areesha Zubair, for the Applicant (Appellant)

Applicant (Appellant)

• and -

SCOTT GARLICK

Scott Garlick, on his own behalf

Respondent (Respondent)

HEARD: in writing

APPLICATION FOR LEAVE TO APPEAL AN INTERLOCUTORY ORDER

[1]

Introduction

The applicant seeks leave to appeal the interlocutory order of Skarica J. dated March 6, 2015 denying the applicant temporary or interim spousal support. Pursuant to the amendments to Rule 62 of the Rules of Civil Procedure that came into effect on January 1, 2015 such applications are now to be dealt with in writing.

[2]

The Test for Leave to Appeal

Rule 62.02(4) sets out the test I must apply. Insofar as that rule is relevant to this case it provides that leave to appeal shall not be granted unless there appears to the judge hearing the motion good reason to doubt the correctness of the order sought to be appealed and the proposed appeal involves matters of such importance that the judge hearing the leave application is of the opinion leave should be granted.

3With respect to the first branch of the test, it is not necessary for the applicant to convince the court that the decision is wrong or probably wrong, but only that there is good reason to doubt the correctness of the decision. The question is whether the decision is open to serious debate: Judson v. Mitchele, 2011 ONSC 604; Brownhall v. Canada (Minister of National Defence) (2006), 80 O.R. (3d) 91 (S.C.J.).

4With respect to the second branch of the test, leave will only be given where the appeal involves matters of general or public importance which transcend the interests of the parties, warranting resolution by a higher level of judicial authority, such as matters relevant to the development of the law and the administration of justice: Greslik v. Ont. Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.); Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.).

[5]

Analysis

The applicant submits in her notice of motion that the motions judge incorrectly applied the onus, burden of proof and law with respect to entitlement to his determination that the applicant had failed to establish a prima facie case for an award of temporary spousal support. However, in her factum the applicant concedes that the motion judge correctly cited the appropriate test. The applicant’s submissions cumulatively amount to a number of different reasons as to why the applicant says the motion judge reached the wrong decision in applying the correct legal test to the facts he found from the evidence before him.

6Based on my review of the matter I agree that another judge may well have reached a different conclusion as to entitlement based on the same evidence. That is not necessarily a conclusion that there is good reason to think that the motion judge erred. The factual findings made by the motion judge were available to him and support his conclusion.

7However, even assuming the first branch of the test is met, I am firmly of the view that the applicant has failed to satisfy the second branch of the test. While the matter is of importance to the applicant, I do not accept the applicant’s submission that the decision of the motion judge raises a matter of general importance which transcends the parties’ interests. For this reason the application is dismissed.

[8]

Admissibility of Affidavits

I would add the following. The applicant asks the court to consider two affidavits on this application. The first is dated March 6, 2015. It was a reply affidavit to a cross-motion that was before Skarica J. on March 16, 2015. That motion was adjourned. Consequently, Skarica J. did not consider that affidavit. A transcript shows he was not asked to consider it on this motion. It is not suggested that in the circumstances he erred in failing to do so. That affidavit was filed late and the motion it was prepared for was adjourned. In my view it would not be appropriate for me to consider that affidavit in these circumstances.

9The second affidavit was sworn by the applicant on March 17, 2015 in respect of this application for leave. It is an attempt to reargue the original motion, to place before the court additional matters that could have been argued on the original motion, and to expand the record in respect of the test I am now to apply. In my view this is not appropriate on a motion for leave to appeal: 90207 Can. Ltd. v. Maple Leaf Village Ltd. (1981), 24 C.P.C. 152 (H.C.).

[10]

Leave to Appeal Costs

The applicant also seeks leave to appeal the award of $2,500 costs to the respondent. Those costs were ordered to be paid out of the applicant’s equalization payment. I see no error in the award of costs or the amount ordered given the respondent’s substantial success on the motion and the findings of fact made by the motion judge. As I have said, those findings were open to him on the evidence. Costs are a discretionary matter and leave to appeal a costs award will be sparingly granted.

[11]

Disposition

The application is dismissed.

12As no responding material has been filed there will be no costs.