Court File and Parties

CITATION: Da Costa v. Da Costa, 2017 ONSC 7215

DIVISIONAL COURT FILE NO.: 684/17 FC NO:-13-388590

DATE: 2017/12/01

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: manual augusto da costa, Appellant (Respondent)

AND:

jacinta de araujo da costa, Respondent (Applicant)

BEFORE: KITELELY J.

COUNSEL: Avy Jordan Ben-zvi, for the Appellant (Respondent)

Jan D. Weir, for the Respondent (Applicant)

HEARD at Toronto: December 1, 2017

Endorsement

[1] In an order dated August 10, 2017, Faeita J. dismissed the motion by the former wife for an order for valuations and other relief. The deadline for filing a motion for leave to appeal was August 25, 2017.

[2] The notice of motion for an order for an extension of time to bring a motion for leave to appeal and for an order for stay pending the appeal was served November 22, 2017. The delay is approximately 90 days.

[3] At the outset, I pointed out to counsel that the motion record did not include a signed and entered copy of the order. Counsel confirmed it was not available. I also pointed out to counsel that the former wife relied on three reasons for the delay (medical emergency, extensive flooding in the house and death of a niece) but the affidavit contained no documents that corroborated any of those reasons. I held this matter down while dealing with another matter.

[4] On resumption, counsel for the moving party asked for an adjournment of this motion for 30 days to give his client an opportunity to file additional material to address the deficiencies. While Mr. Weir appeared to be acquiescing, I refused to grant an adjournment. The former husband’s motion for summary judgment dismissing the claims by the former wife is scheduled to be heard Tuesday, December 5, 2017. It was launched and originally returnable August 12, 2014 then adjourned to January 8, 2015 and is set for next week with various procedural steps and disclosure motions since August 12, 2014.

[5] The court must not condone such delays. I do not accept even the acquiescence in the adjournment requested by the former husband. I dismiss the oral motion for the adjournment.

[6] I then heard submissions by Mr. Ben-zvi on the merits of the motion. As indicated above, the delay is 90 days and is not extreme or significant, except that the motion to extend time and for a stay was served less than two weeks before the December 5, 2017 hearing. The evidence as to the explanations for the delay is inadequate and deficient. I was not given a copy of the notice of motion for leave to appeal because it appears not to exist. But it means I do not know whether the motion for leave is pursuant to Rule 62.02(4)(a) or 62.02(4(b). I cannot assess the merits of the appeal and the motion for leave to appeal from that perspective. However, since the order is procedural, it is unlikely to be successful (McCain v. Melanson, 2017 ONSC 2266). No further delays will be tolerated. The justice of the case demands that the motion to extend time and for stay be dismissed.

[7] The former wife shall pay costs of $2,000 payable by January 3, 2018

KITELEY J.

Date: December 1, 2017