CITATION: Norris v. Norris, 2017 ONSC 3515
DIVISIONAL COURT FILE NO.: 16-70963
DATE: 20170608
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ANDERSON NORRIS
Appellant/Moving Party
– and –
ELLEN NORRIS
Respondent in Appeal/ Responding Party
Michael Rappaport, for the Appellant/Moving Party
Steven Fried, for the Respondent in Appeal/Responding Party
HEARD: In writing
LEAVE TO APPEAL
[1] The Appellant brings this Motion for Leave to Appeal the December 16, 2016, Temporary Order of Justice Maranger sitting as Justice of the Superior Court of Justice Family Branch. Although the Leave to Appeal is dated the same day, it was not served until February 21, 2017.
[2] The Notice of Motion for Leave to Appeal refers an order where the motion judge awarded $10,000 in costs “thrown away” to the Respondent and vacated a trial date without authority; accepted a confirmation form as evidence and erred in the application of Rule 11 of the Family Law Rules, O. Reg. 114/99 (the “Family Law Rules”).
[3] A better understanding of the Motion for Leave to Appeal can be obtained from a review of the Order as issued and entered. The Appellant had sought an order extending the time for him to serve and file his Response to a Request to Admit and for leave to amend his Application.
[4] The motion judge allowed that relief but adjourned the trial of an issue which was scheduled to start on January 2, 2017 and made the order for costs.
Background
[5] The parties were married on February 18, 1978. The date of separation is a significant issue in these proceedings. The Appellant maintains that the parties separated on May 7, 2009 whereas the Respondent maintains that they separated on February 17, 2008. The date of separation is of significance since that will determine whether or not the Appellant missed the limitation period to pursue a claim for an equalization of net family properties pursuant to section 7 the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”).
[6] The Respondent brought a motion for summary judgment on January 28, 2016 seeking to confirm that the valuation date is February 17, 2008 and she sought other relief. On that date, Justice Corthorn concluded that she was not in a position to make a determination on the issue of the date of separation and ordered that the issue proceed by way of a trial of an issue, with viva voce evidence, scheduled for four days and to be heard as part of the September 2016 sittings. She also granted leave to the Appellant to file his reply within 10 days of that date; granted the parties leave to proceed to questioning and reserved costs to the trial judge.
[7] On September 10, 2016, the Respondent served a Request to Admit in anticipation of the upcoming trial. The Appellant failed to respond within the 20 days as required by the Family Law Rules.
[8] It appears that the matter did not proceed in September as originally scheduled. It was adjourned to January 2, 2017. The Respondent’s motion for various forms of relief was scheduled for October 21, 2016
[9] On October 21, 2016, the Respondent renewed her motion for summary judgment and other relief, including an interim order pursuant to which title to the matrimonial home would be vested in or transferred into her name only pending the determination of the equalization payment issue. This was once again heard by Justice Corthorn who declined to grant any of the relief sought.
[10] At the same time, the Appellant had sought an extension of time to file a Response to the Request to Admit and Justice Corthorn declined to grant that relief since no formal notice of motion had been served, and a more “full some explanation” was required as to why the Appellant missed the 20 day time period. However, she did grant the Appellant leave to bring that motion which was part of the relief sought on December 16, 2016.
[11] A transcript of the motion and of motion judges’ oral reasons has been provided. The motion judge granted the request for the extension of time to respond to the Request to Admit and then heard the motion to amend the application; specifically the request to seek relief pursuant to section 2(8) of the FLA to extend the limitation period contained in section 7(3) of the Act. The Appellant also sought to amend his application to claim that he was functionally illiterate. He acknowledged that this would “re-write the history” of the case. The motion judge granted the amendment but concluded that the two years of litigation had been wasted and made the award of costs that is subject to this appeal.
[12] In addition to his oral reasons, the judge provided the following endorsement and stated the following at paras. 3 and 4:
3 The trial of an issue before Justice Corthorn would have potentially ended the claim for equalization - granting the amendment request changes that possible result. All of the issues should be tried together. Two proceedings aren’t necessary and would be costly and wasteful.
4 The amendment request in this case comes late in the day; several court attendances, including a summary judgment motion, a trial date set, strategy and method of proceeding by the respondent was all predicated on the issues of the date of separation being determinative of the equalization; granting the amendments request alters that fact. Costs of thrown away here are fairly substantial – in the circumstances I would fix costs in the amount of $10,000 payable by the applicant to the respondent forthwith for the amendment being brought almost 2 years into the litigation.
The Law
[13] Rule 11(3) of the Family Law Rules provides:
(3) On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.
[14] Rule 24(10) of the Rules provides:
Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, it is entitled costs, and set out the amount of costs.
[15] Rule 38 of those Rules provides:
- (1) Rules 61, 62 and 63 of the Rules of Civil Procedure apply with necessary changes, including those modifications set out in subrules (2) and (3),
(a) if an appeal lies to the Divisional Court or the Court of Appeal;
(b) if leave to appeal to the Divisional Court or the Court of Appeal is required,
in a family law case as described in subrule 1 (2). O. Reg. 89/04, s. 13; O. Reg. 142/14, s. 13 (1).
Test for Leave to Appeal of an Interlocutory Order
[16] 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.
[17] 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), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).
[18] 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 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 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), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (H.C.J.)(Div. Ct.).
[19] It is not clear which test the Appellant relies on in support of this motion for Leave to Appeal. The Appellant has cited no case law which indicates that the decision of the motion judge conflicts with another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal.
[20] This leaves the question as to whether or not the Appellant has met the test under rule 62.02(4)(b). I have assumed that the Appellant is arguing that there are good reasons to doubt the correctness of the motion judge’s orders. He argues that the motion judge accepted a confirmation form (Form 14 C) as evidence; that he erred in the application of Rule 11; that he erred in law and acted without authority in vacating the trial date set; that he erred in law in awarding costs “thrown away” to the unsuccessful party and that he failed to provide written reasons, overlooked material facts and failed to provide either statutory authority or judicial authorities in support of his decision.
[21] The Appellant fails to state why the proposed appeal involves matters of such importance that Leave to Appeal should be granted other than to baldly state in his factum: “This is one of those rarest of cases.”
[22] A transcript from the proceeding indicates that the motion judge chose to ignore the confirmation form to the extent that it did not contain any evidence that was not previously included in the Respondent’s affidavits filed in this matter.
[23] The Appellant issued his application on February 3, 2015. The Respondent delivered her Answer in March 2015. The limitation period was put in issue at that time. The Appellant did not seek to amend his application at any time prior to the motion he brought on December 13, 2016. These were all facts that could be determined on the record before the court.
[24] It is clear that the motion judge found that the Respondent was prejudiced by the Appellant’s request to amend his application after two years and he invited the Appellant to provide submissions on costs and on vacating the trial. The Appellant failed to make any submissions on the costs issue and provided his consent for vacating the trial and stated:
I would agree that if the trial were vacated, it would end up saving both parties significant costs. They should never have separated the issue of the date of the separation from all other relief.
[25] As for vacating the trial date, rule 11(3) specifically addresses the issue of both an adjournment and costs in granting an amendment to a pleading. Given the Appellant’s admission that the amendment would essentially rewrite the history of the proceedings; there is no good reason to doubt the correctness of the motion judge’s finding of prejudice to the Respondent and the need to adjourn the trial. Having regard to the Appellant’s further admission that the determination of the separation date should not have been separated from all other relief, there is no reason to doubt the correctness of the motion judge’s decision to vacate the trial date. In doing so, the judge gave clear oral reasons followed by a handwritten endorsement.
[26] The Appellant has failed to demonstrate that the decision involves matters of importance that go beyond the interests of the immediate parties, and that involves questions of general or public importance relevant to the development of the law and administration of justice.
[27] The Motion for Leave to Appeal is dismissed with Costs to the Respondent. The parties may provide me with their written submissions as to the quantum and scale of costs within 20 days of the release of this decision.
Mr. Justice Robert N. Beaudoin
Released: June 08, 2017
CITATION: Norris v. Norris, 2017 ONSC 3515
DIVISIONAL COURT FILE NO.: 16-70963
DATE: 20170608
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ANDERSON NIXON
Appellant/Moving Party
– and –
ELLEN NORRIS
Respondent in Appeal/ Responding Party
leave to appeal
Beaudoin J.
Released: June 08, 2017