Court File and Parties

CITATION: Reddy v. Reddy, 2016 ONSC 807 DIVISIONAL COURT FILE NO.: 449/15 DATE: 2016-02-02 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Michael MacLachlan Reddy, Applicant AND: Mary Elizabeth Reddy (NEE VEIGH), Respondent

BEFORE: C. Horkins J.

COUNSEL: E. Llana Nakonechny, for the Applicant Erin Crawford and Megan Edmiston, for the Respondent

HEARD at Toronto: In Writing

Endorsement

[1] The applicant seeks leave to appeal from the interim order of Justice E. Stewart dated August 11, 2015. In that order, the motion judge ordered the following:

(i) The applicant shall pay the respondent interim spousal support of $3,500 per month retroactive to January 1, 2013

(ii) The applicant shall maintain the respondent as an irrevocable beneficiary of $650,000 of his life insurance coverage per section 7 of the Agreement and 34(i) of the Family Law Act, R.S.O. 1990, c. F.3 and furnish proof to the respondent’s counsel.

(iii) The applicant shall provide specific itemized disclosure by September 11, 2015

(iv) The applicant is restrained from depleting or dissipating directly or indirectly any property in which he may have a direct or indirect legal or beneficiary interest.

[2] The test for granting leave to appeal under Rule 62.02(4)(a) or (b) 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.

[3] The applicant relies on Rule 62.02(4)(a) and (b).

[4] I will deal with Rule 62.02(4)(a) first. 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.”

[5] 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.).

[6] The applicant has not satisfied the first part of the test in Rule 62.02(4)(a). He has not established that there is a conflicting decision of another judge or court in Ontario or elsewhere.

[7] The applicant provided one decision that he says is a conflicting decision of another judge: Dram v Foster, 2009 MBCA 125. He relies on this decision for the proposition that an interim motion is not the proper forum to make a retroactive order where there is no evidence of need or hardship and the reasons do not state the need for a retroactive order.

[8] Dram v Foster is distinguishable from the facts of this case and it is not a conflicting decision as required by the test. Dram v Foster was an appeal of an interim lump sum retroactive child support award. The case does not deal with spousal support. The focus in Dram v Foster was on the fact that the parent was ordered to pay a lump sum for child support. As the court stated, such an order should only be made where extraordinary or exceptional circumstances justify it. The lump sum in that case also included an amount for retroactive child support. The motion judge gave no reasons for why the order had to be made on a retroactive basis. The order was set aside.

[9] In this case, the motion judge ordered spousal support and she gave reasons for making it retroactive. In Ontario there are numerous cases where interim retroactive spousal support orders are made: Samis (Guardian of) v. Samis, 2011 ONCJ 273 at para. 46; Lakhani v. Lakhani, [2003] O.J. No. 4041; Elgner v. Elgner, 2010 ONSC 794; Turk v. Turk, [2008] O.J. No. 397.

[10] The failure to prove that there is a conflicting decision is reason alone to deny leave to appeal under Rule 62.02(4) (a). As a result, it is not necessary to consider the second part of the test.

[11] It is worth pointing out that in Dram v Foster the court emphasized that appeals for interim family court orders are to be discouraged.

[12] I will now consider 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. et al. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.); Elgner v. Elgner, 2010 ONSC 1578.

[13] The applicant has not satisfied the second part of the test. This appeal does not involve “matters of such importance that leave to appeal should be granted.” The issues raised do not go beyond the interests of the litigants and involve questions of general or public importance relevant to the development of the law and administration of justice. There are no issues in this dispute that transcend the private interests of the parties arising from their failed marriage and the Separation Agreement that they signed.

[14] Since the second part of the test under Rule 62.02(4)(b) has not been satisfied, it is not necessary to address the first part of the test.

[15] In summary, the applicant’s motion for leave to appeal under Rule 62.02(4)(a) or (b) is dismissed.

[16] The respondent seeks costs for this leave motion. She was successful and is entitled to costs. The Bill of Costs shows that the work was divided between senior and junior counsel at reasonable rates. As well, time was incurred by a law clerk. While this was a motion in writing, counsel had to file a responding factum and brief of authorities. The fees total $8,402.50 plus HST of $1,092.33. With disbursements and HST, the grand total is $9,799.93. The respondent asks that the court fix her costs at $8,500 all inclusive.

[17] The expectations of the losing party are a measure of what is reasonable for costs. The applicant submitted a bill of costs and this reveals a total of $10,229.54 for fees, disbursements and HST. This is slightly more than the respondent’s total and serves to demonstrate the reasonableness of the fees incurred by respondent’s counsel.

[18] The issues in dispute are important to the parties and are of moderate complexity. As of the date of the respondent’s factum, the applicant had not complied with Justice Stewart’s order. This noncompliance includes the extensive financial disclosure that was ordered.

[19] In awarding costs, I must identify an amount that is fair and reasonable in the circumstances. Two decisions from the Court of Appeal emphasize this approach: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.) and Moon v. Sher, [2004] O.J. No. 3942 (C.A.).

[20] I fix the respondent’s costs at $6,000 inclusive of fees disbursements and HST. In my view, this is fair and reasonable. The applicant is ordered to pay these costs as an incident of spousal support and the amount is to be enforced as spousal support.

C. Horkins J.

Date: February 2, 2016