Court File and Parties

CITATION: Singh v. Singh, 2016 ONSC 2309

COURT FILE NO.: FS-13-388450 and CV-13-477962

DIVISIONAL COURT FILE NO.: 7/16

DATE: 20160406

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rajeev Singh, Applicant/ Responding Party

AND:

Alka Singh, Respondent/ Moving Party

BEFORE: H. Sachs J.

COUNSEL: A. Rick Toor, Counsel, for the Applicant/ Responding Party

Alka Singh, on her own behalf

HEARD: In writing

ENDORSEMENT

[1] The Moving Party, Alka Singh, seeks leave to appeal the order of Kiteley J., dated December 24, 2015, in which she ordered that $60,000 be released to the Responding Party from funds currently being held in trust. The Responding Party was requesting funds for living expenses and legal fees.

[2] As a result of an ex parte order dated November 27, 2012 funds in the name of the Responding Party were frozen. On December 13, 2012 the ex parte order was continued until January 15, 2013. After that date, the Responding Party requested the release of certain funds, but his requests were ultimately denied, without prejudice to his ability to renew his request before the trial judge. Kiteley J. made the order the Moving Party is seeking leave to appeal as the trial judge. In doing so, she found that the initial ex parte order was an order under s. 12 of the Family Law Act, not a mareva injunction. She also found that it was not necessary to continue the s. 12 preservation order to protect the interests of the Responding Party to an equalization payment. Finally she found that the reason the Moving Party was seeking to have all the funds preserved is because of a misappropriation claim she was making against the Responding Party, which is the subject of a separate civil action that is also proceeding to trial. Since the civil claim is not a claim under the Family Law Act, it could not be the subject of s. 12 preservation order under that Act.

[3] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-

part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[4] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[5] Under Rule 62.02(4) (b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

[6] The Moving Party alleges that leave should be granted because Kiteley J.’s order conflicts with other orders made by other judges. In support of this allegation she cites a number of cases. However, an examination of those cases reveals that the facts and issues in those cases were very different than the facts and issues giving rise to the order the Moving Party is seeking leave to appeal. In other words, there is no matter of principle raised by this appeal that the Divisional Court needs to clarify.

[7] The Moving Party also argues that there is good reason to doubt the correctness of the order she is seeking leave to appeal. I disagree. However, even if that were the case, the proposed appeal does not raise any matter or issue that goes beyond the interests of the parties. The questions raised are not questions of general or public importance relevant to the development of the law and the administration of justice.

[8] For these reasons the motion for leave to appeal is dismissed. As the successful party, the Responding Party may make submissions in writing on the question of costs within 10

days of the release of this endorsement; the Moving Party shall have 10 days to respond to these submissions.

Sachs J.

Date: April 6, 2016