CITATION: Schwilgin v. Szivy, 2015 ONSC 4292
DIVISIONAL COURT FILE NO.: 306/14 DATE: 20150702
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEDERMAN, SWINTON AND SACHS JJ.
BETWEEN:
LASZLO SCHWILGIN Applicant (Appellant in Appeal)
– and –
LORI ANNE SZIVY Respondent (Respondent in Appeal)
In Person
Robie S. Loomer, for the Respondent (Respondent in Appeal)
HEARD at Toronto: July 2, 2015
SACHS J. (ORALLY)
[1] Pursuant to s.19(1) and (1.2) of the Courts of Justice Act, an appeal lies to the Divisional Court from a final order dismissing a claim for a single payment of not more than $50,000 exclusive of costs.
[2] In his Notice of Motion before Backhouse J. the appellant requested the rescinding of all amounts of arrears owing to the respondent according to the Family Responsibility Office. In para. 4 of her order (the order under appeal) Backhouse J. dismissed the appellant’s claim in that regard stating:
The respondent, Mr. Laszlo Schwilgin’s arrears, currently at Family Responsibility Office shall not be rescinded or varied.”
[3] The amounts of the arrears at the Family Responsibility Office as the date of the order was $75,000.00 (see para. 2 of Backhouse J.’s reasons). Thus, the claim that was dismissed pursuant to para. 4 of Backhouse J.’s order exceeds $50,000.00.
[4] Paragraph 2 of Backhouse J.’s order does provide that the appellant is entitled to a credit on account of child support owing by the respondent effective July 1, 2013. Paragraph 3 of the order fixes that child support at $635.00 per month. Applying that credit to the date of the order (May 20, 2014) would provide for a credit of under $7,000.00, which would not bring the amount of the claim that was dismissed to under $50,000.00. Thus, this Court does not have jurisdiction to hear this appeal. Even though the appellant has offered to reduce the amount at issue in this appeal to $50,000.00, that cannot confer jurisdiction.
[5] Pursuant to s. 110 of the Courts of Justice Act, this Court has the discretion to transfer this appeal to the Court of Appeal. In exercising our discretion under this section, we are to consider the merits of the appeal, the prejudice to the respondent from further delay and whether the appellant moved expeditiously once it was known that jurisdiction was being disputed. (Dunnington v. 656956 Ontario Ltd.) (1992), 1991 7107 (ON SC), 89 D.L.R. (4th) 607, 9 O.R. (3d) 124 (Gen. Div.)).
[6] In this case the issue of jurisdiction was raised by the respondent in August 2014. The appellant did not move expeditiously to bring his appeal in the proper forum. In this regard we do not accept that the respondent’s failure to consent to the transferring of this appeal to the Court of Appeal is a satisfactory explanation for the appellant’s failure to move with expedition to ensure that this appeal was brought in the proper forum.
[7] The appellant has used this appeal as a means of delaying paying the arrears in question and the costs ordered to the respondent. Further, the appellant has a history of using Court proceedings in this way. This has caused the respondent considerable prejudice.
[8] In terms of the merits of this appeal, the appellant is essentially seeking a rehearing of the factual basis for his initial application. The appeal as presented does not appear to raise any issues of law.
[9] We therefore decline to exercise our discretion to transfer this appeal to the Court of Appeal.
[10] For these reasons the appeal is quashed for lack of jurisdiction.
LEDERMAN J.
COSTS
[11] I have endorsed the Record to read as follows, “This appeal is quashed for lack of jurisdiction for oral reasons delivered by Sachs J. We decline to transfer this appeal to the Court of Appeal pursuant to s. 110(1) of the Courts of Justice Act. We award costs to the respondent fixed at $10,000.00 all inclusive, payable by the appellant. This amount reflects the fact that this appeal was quashed on the narrow ground of lack of jurisdiction and recognition of some costs thrown away for the preparation of the appeal by the respondent.”
___________________________ SACHS J.
LEDERMAN J.
SWINTON J.
Date of Reasons for Judgment: July 2, 2015
Date of Release: July 10, 2015
CITATION: Schwilgin v. Szivy, 2015 ONSC 4292
DIVISIONAL COURT FILE NO.: 306/14 DATE: 20150702
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, SWINTON AND SACHS JJ.
BETWEEN:
LASZLO SCHWILGIN Applicant (Appellant in Appeal)
– and –
LORI ANNE SZIVY Respondent (Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: July 2, 2015
Date of Release: July 10, 2015