Court File and Parties

Citation: Cronier v. Cusack, 2017 ONSC 5532 Court File No.: DC-17-391 Date: 2017-09-18 Superior Court of Justice – Ontario Divisional Court

Re: Clair C. Cronier, Applicant And: Patrick Leo Wayne Cusack, Respondent

Before: Kiteley J. Heard at Toronto: September 18, 2017

Endorsement

[1] On May 11, 2017 Perkins J. released an endorsement containing his order arising from the motion by Ms. Cronier and the cross-motion by Mr. Cusack. The signed and entered order contains 7 paragraphs. Ms. Cronier seeks to appeal paragraph 5 which provides that each party shall receive $90,000 from the proceeds of sale of the former matrimonial home that had been held in trust since the closing of the sale in December 2015. The order is a temporary order and, pursuant to rule 61.03 Ms. Cronier was required to serve her notice of motion for leave within 15 days or by May 26, 2017. At that time, the motion for leave to appeal would have been before a single judge. Ms. Cronier did not serve a motion for leave by May 26, 2017.

[2] In her notice of motion before me, Ms. Cronier asks for an extension of time to bring a motion for leave. She also asks that if an extension of time is allowed, that I hear the leave to appeal motion. The procedure changed effective July 1, 2017 but since this arose prior to the change, I will decide the motion within the context of the procedure in May and June 2017.

[3] Pursuant to rule 3.02 the applicant must establish that she had an intention to appeal within the 15 days; she must explain the reasons for the delay; she must address whether the respondent would be prejudiced by the extension of time; and she must make submissions on the merits of the appeal and the "justice of the case".

[4] The exchange of emails on May 11 indicates that when Ms. Cronier was told by Mr. Cusack about the order, she was pleased and thought that $90000 sounded like great news. That does not suggest an intention to appeal.

[5] Ms. Cronier agrees that she did not serve a motion for leave to appeal within 15 days. Her affidavit indicates the steps she took to get legal advice. She did serve material on June 2. That material is not before me but I understand that it related to her motion for leave to appeal. Based on the advice that she was getting, she understood that as between the motion for leave to appeal and the motion for an extension of time, she should concentrate on the motion for an extension of time. The motion record before me was served in mid-July. Mr. Cusack acquiesces that the record indicates that she showed an intention to appeal if not within the 15 days, then shortly thereafter.

[6] Ms. Cronier has provided an explanation for how it was that the motion for an extension of time is heard 4 months after the fact. A lot of it has to do with mastering the paperwork to bring the matter before the court. Mr. Cusack acquiesces that she has explained the delay.

[7] Ms. Cronier asserts that Mr. Cusack will not be prejudiced if an extension of time is granted. Mr. Cusack takes the position that the funds have been held in trust for 20 months and his financial circumstances as reflected in paragraph 29 of his affidavit indicate that he needs a portion of the funds held in trust.

[8] Ms. Cronier and Mr. Cusack each challenge the financial circumstances of the other. For purposes of this motion, I accept that each of them provided evidence of need as a result of which Perkins J. held that both had "established a need for funds". Mr. Cusack demonstrated need in May, 2017 so it stands to reason that he would be prejudiced if the $90,000 to which he was found entitled continued to be withheld.

[9] I turn then to the merit of the proposed appeal and the "justice of the case". This leads to a consideration of rule 62.02(4)(b) which appears to be the basis upon which Ms. Cronier will ask for leave to appeal if she is granted an extension of time.

[10] Ms. Cronier takes issue with the order made by Perkins J. She insists that she had provided evidence that Mr. Cusack had falsified evidence; that she needs an extension of time and leave to appeal to demonstrate that "what is going on is unfair". In essence, she disagrees with the order requiring payment to both parties. That is not a basis upon which to find that there is "good reason to doubt the correctness of the order". She has not met the first element of the test for granting leave.

[11] Rule 62.02(4)(b) requires that the moving party also establish that the proposed appeal "involves matters of such importance that. . . leave to appeal should be granted". In her material, Ms. Cronier did not address this issue. In her reply submissions she said that there is importance to the public in that her allegation that Mr. Cusack falsified documents ought to be addressed. I disagree. The dispute between Ms. Cronier and Mr. Cusack is between them. Perkins J. made a temporary order on the basis of evidence before him, much of which was disputed. Perkins J. noted the delay in the case and in paragraphs 1, 2, 3, 4, and 6, he made procedural orders designed to move this 2015 case towards settlement or trial. Granting an extension of time for leave to appeal from paragraph 5 would undermine the procedural orders he put in place, none of which is the subject of this motion. He made a discretionary order on the basis of the evidence before him. There is no aspect of the proposed appeal that indicates it is a matter of importance. Rankin v. McLeod, Young, Weir Ltd. et al 1986 2749 (ON SC), 57 OR (2d) 569. Ms. Cronier has failed to meet the second element of the test for granting leave to appeal.

[12] I stress that today I am only hearing Ms. Cronier's motion for an extension of time to appeal, notwithstanding the alternative relief sought in her notice of motion that leave be granted. However, in the context of the motion for an extension of time, I must consider the merits and the "justice of the case" which ultimately leads to consideration of rule 62.02(4)(b). If Ms. Cronier had brought the motion for leave to appeal within 15 days and if it had been heard in accordance with the procedure in place at that time, namely before a single judge of the Divisional Court, I would not have granted leave. That is relevant to the 4th factor in motions for extension of time.

ORDER TO GO AS FOLLOWS:

[13] The motion for an extension of time to bring a motion for leave to appeal paragraph 5 of the temporary order made by Perkins J. dated May 11, 2017 is dismissed.

[14] The applicant shall pay to the respondent costs in the amount of $2500 to be paid forthwith from the funds held in the trust account of B.J.B. Letterio, Q.C. to be allocated to funds to which the applicant is entitled pursuant to paragraph 5 of the temporary order dated May 11, 2017.

[15] The dates contained in the order made May 11, 2017 are changed as follows:

Paragraph 1 October 10, 2017

Paragraph 2 October 10, 2017

Paragraph 3 October 13, 2017.

[16] The respondent may take out the order without approval by the applicant.

Kiteley J.

Date: September 18, 2017